The Court of Appeal has delivered a recent judgment in McKeown v Crosby1 in which it reduced the level of damages awarded to the plaintiff in a personal injuries case on the basis of policy concerns and emphasised the need for regard to the Book of Quantum.
The plaintiff suffered soft tissue injuries to her shoulder, back and arm in a car accident and was unable to work for 6 weeks. Her complaints primarily related to low back pain and initially her symptoms were relatively intrusive and troublesome. The case came before the High Court on an ‘assessment only’ basis as liability was not disputed. At the date of the trial (2 years, 9 months post-accident) there was no evidence to suggest that the plaintiff would suffer any significant ongoing pain which would hinder or prevent her from leading a full and ordinary life, and only had some fairly minor and subjective ongoing complaints.
Judgment of the High Court
The High Court Judge found that the plaintiff had done all that was feasible to mitigate her losses and was impressed that the plaintiff had wanted to continue working despite her injuries. The plaintiff had suffered a relatively significant loss of amenity and was awarded €65,000 for past pain and suffering and €5,000 for pain into the future, i.e. €70,000 in total. The defendants appealed this decision to the Court of Appeal on the basis that the award was too high.
Court of Appeal Decision
The Court of Appeal outlined that the assessment of damages is not amenable to scientific analysis, but it does take account of societal factors such as those alluded to in Sinnott v. Quinnsworth2 and M.N v. S.M3, which affirmed that there should be a ‘rational relationship’ between different awards of damages in different cases concerning personal injuries. The Court of Appeal emphasised the importance of proportionality in personal injuries awards, and noted that the relevant factors in that regard undoubtedly include the cost of liability insurance such as motor, public or employer’s liability insurance which, for most ordinary people and businesses, represent significant outgoings. Ultimately each member of society must bear the cost of a compensation system whether through the payment of insurance premia in the case of private defendants or taxes in the case of public defendants.
The decision goes on to note that the Book of Quantum has had a surprisingly limited impact on the calculation of awards, which has led to the variations in the sum awarded for comparable cases despite Courts being mandated to have regard to the Book of Quantum by virtue of s.22 of the Civil Liability and Court Act 2004.
The Court of Appeal emphasised that the Book of Quantum must be applied where appropriate, noting that:-
“Despite the fact that the Book of Quantum has been around for 16 years, it is seldom referred to in express terms by either advocates or judges. This case is a typical example where, despite the injuries being of a kind that would appear to lend themselves readily to consideration in the context of the Book, in the High Court neither party referred to it or indeed made any submissions on damages beyond counsel for the defendants suggesting that this was in reality a Circuit Court case. Similarly, the trial judge made no more than a fleeting reference to having had regard to it. That is not a criticism of anyone but simply to note that this appears to be the norm. It seems to me therefore that in cases where the Book of Quantum is clearly relevant, it would assist the court’s considerations to hear submissions from the parties about how it should be applied…”.
Ultimately, the Court of Appeal held that the High Court award in the case could not be viewed as proportionate by any reasonable measure. Importantly, it bore no relation to the range of damages recommended for such injuries in the Book of Quantum. The Court of Appeal decided, instead, that the correct award was €30,000 for past pain and suffering and €5,000 for the future.
This Court of Appeal judgment is interesting in two specific ways. First, the fact that the Court of Appeal referred to the fact that personal injuries awards do not exist in a vacuum and must be paid for by society as a whole, whether through insurance premiums or public taxes. This factor, amongst others, led the Court of Appeal to reduce the plaintiff’s award by 50%.
Secondly, the direction that the Book of Quantum should be used by the parties and the Court is welcome and should help bring greater consistency and transparency in the level of awards generally. It is notable that in this instance, the level of damages recommended in the Book of Quantum for an injury of the sort suffered by the plaintiff was also referenced by the Court of Appeal in reducing the award.
1 Emma McKeown v Alan Crosby and Mary Vocella  IECA 242
2  ILRM 523
3 2005] 4 IR 461
For further information on this issue, please contact Robbie Slattery email@example.com at Hayes solicitors.
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About the Author
Robbie is a senior corporate and commercial associate solicitor. 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.