Personal Injuries in the Court of Appeal

Personal Injuries in the Court of Appeal

Personal Injuries Update MARK CURRAN BL Barrister-At-Law Accredited Mediator Qualifications BBL (UCD) LLM(Cantab) Accred. Mediator (Friary Law) Foreign Bars New York State Bar e: [email protected] Proportionality when assessing damages A series of CA judgments delivered in the last 3 years have clarified the principles to be applied when assessing damages in personal injuries actions so as to ensure that

the award made is just, equitable and proportionate The effect of these judgments has been to significantly reduce and in some cases dismiss personal injuries awards in the High Court Key CA decisions from 2016-2019 Nolan v Wirenski [2016] IECA 56 Lavin v Dublin Airport Authority Plc [2016] IECA 268 Shannon v OSullivan [2016] IECA 93 Gore (A Minor) v Walsh [2017] IECA 278 Byrne v Ardenheath Company Ltd [2017] IECA 293 McLaughlin v McDaid [2018] IECA 5 Nolan v Wirenski [2016] IECA 56

Appeal of decision of HC to award damages of 125,680 Comprised 90,000 general damages for pain & suffering from date of accident to date of judgment (4 years), 30,000 for general damages for pain & suffering in the future and 5,680 special damages Pl suffered significant injuries to right shoulder, hand and thumb as a result of a rear ending Nolan v Wirenski [2016] IECA 56

Pl had been prescribed painkillers, had undergone 60 sessions of physiotherapy and undertaken injections and various surgeries Suffered from disruptive sleep and restriction in ability to carry out household activities CA stated that An appellate court enjoys jurisdiction to overturn an award of damages if it is satisfied that no reasonable proportion exists between the sum awarded by the trial judge and what the appellate court itself considers

appropriate in respect of the injuries concerned Nolan v Wirenski [2016] IECA 56 it is reasonable to look for consistency as between awards in similar cases but the same kind of injury can have different impacts on the persons who suffer it. Therefore, the court should not have the aim of achieving similarity or a standard figure. ... the essential point is that it is reasonable to seek to measure general damages by reference to a notional scale terminating at approximately the current maximum award endorsed by the Supreme Court which is in or about

450,000 Nolan v Wirenski [2016] IECA 56 When it comes to assessing damages I believe it is a useful to seek to establish where the plaintiff's cluster of injuries and sequelae stand on the scale of minor to catastrophic injury and to test the reasonableness of the proposed award, or in the case of an appeal an actual award, by reference to the amount currently awarded in respect of the most severe category of injury. CA then referenced various factors which Court may take into account when assessing damages:

Nolan v Wirenski [2016] IECA 56 1. Was the incident which caused the injury one which was traumatic and caused distress? 2. Did the particular Pl require hospitalisation and if so, for how long? 3. What did the Pl suffer in terms of pain and discomfort or lack of dignity during that period? 4. What type of surgical intervention did the Pl require during that period? 5. Did the Pl need to attend rehabilitation and if so, for how long? 6. While recovering, was the Pl capable of independent living? 7. Was the Pl wheelchair bound/in a sling/using crutches? 8. What limitations had been imposed on her activities such as leisure or sporting pursuits? 9. How long was the Pl out of work and to what extent was her relationship with family and friends interfered with? 10. What treatment, therapy or medication was required?

Nolan v Wirenski [2016] IECA 56 Assessment is a rational process taking into account, in summary, the severity of the injury, how long it has taken the plaintiff to recover, whether it has short-term or longterm consequences or sequelae and if so their nature, the impact on the plaintiff's life in all its different aspects including his family, his work, his sports or hobbies or pastimes, in addition to any other features that are relevant in the plaintiff's particular circumstance Nolan v Wirenski [2016] IECA 56 CA was satisfied that the award by HC was disproportionally large

CA noted that: The accident was un-traumatic Pl required no hospitalisation or immediate treatment Required minimally invasive procedures Restriction on day-to-day activities was very modest Nolan v Wirenski [2016] IECA 56 CA reduced general damages to 50,000 for pain and suffering to date and 15,000 for pain and suffering into the future.

A reduction in general damages from 120,000 to 65,000 => approx. 45% reduction Lavin v Dublin Airport Authority Plc [2016] IECA 268 HC awarded 40,000 to the Pl who, received a nasty injury when she lost her balance and fell on an escalator in Terminal 2 of Dublin Airport. The Pl was not holding the handrail at the time of the incident. HC adjudged her to be 1/3 at fault.

CA held that the airport was not at fault for the injuries to the Pl Lavin v Dublin Airport Authority Plc [2016] IECA 268 Provided that reasonable care has been taken by the occupier, no liability will exist. Viewed objectively the escalator in the present case is not an unusual danger in the sense discussedAbsent some unusual defect or danger being present in respect of the staircase and in respect of which the visitor ought to be warned and protected, the occupier will not be liable if the visitor loses her step and falls. In other words provided that

reasonable care has been taken by the occupier no liability will exist. The useris expected to take reasonable care for his/her own safety too. This is provided for in s. 3 of the Shannon v OSullivan [2016] IECA 93 Pls were involved in a RTA. Soft tissue injuries initially and later psychological injuries developed. HC award and appeal to CA. CA stressed the importance of damages being fair to the Pl and Def, proportionate to social conditions and proportionate within the scheme of awards made for other personal injuries

CA again highlighted figure of 450,000 as award for general damages in cases involving extreme or catastrophic injuries Shannon v OSullivan [2016] IECA 93 Ms Shannon award reduced from 131,463 to 66,463. Reduction of approx. 50% Mr Shannon award reduced from 91,463 to 41,463 Reduction of approx. 55%

Gore (A Minor) v Walsh [2017] IECA 278 Pl was four years old when he fell on to the uncovered spindle/valve of a radiator and was left with a two-inch scar on his back which the HC was told would fade over time. HC decided on damages of 50,000. Gore (A Minor) v Walsh [2017] IECA 278 The Court of Appeal decided that the award was excessive,

and reduced it to 25,000. If modest lacerations such as that sustained by the Pl are to attract awards of 50,000 it is difficult to see how the court would be in a position to make a proportionate and fair award in respect of, for example, substantial thirddegree burns to a large area of the body including the face which would not require an award of damages far beyond the level of damages commonly reserved for those who sustain the most extreme type of catastrophic injury such as severe brain damage or quadriplegia. Byrne v Ardenheath Company Ltd [2017] IECA 293 The Pl slipped on a wet day when walking down a grassy

bank at the Defs car park and broke her ankle. In the HC, the Pl was awarded damages of 75,040, having discounted a higher figure by 40 per cent to take account of the Pls contributory negligence. The CA overturned the High Court award. Byrne v Ardenheath Company Ltd [2017] IECA 293 If people want to take a short cut down a slope, they are entitled to but if they are injured as a result they cannot

seek to blame the occupier. Judges should be careful when interpreting statutory provisions (such as the Occupiers Liability Act 1995): to ensure that they do not inadvertently and contrary to the intention of the legislature by their judgments end up denying children the joy of running down a grassy slope in a public park on a dry summer day, or the golfer the pleasure of playing to an elevated green surrounded by a grassy McLaughlin v McDaid [2018] IECA 5

The 2nd,3rd & 4th Defs appealed a HC decision to award damages of 453,000 to the Pl. Proceedings concerned injuries sustained by Pl to his foot on 26 June 2003 at a quarry Distal half of right foot had to be amputated. Foot was halved in side and toes were lost Wheelchair bound for several weeks, severe impact on leisure & household

activities Wounds took several months to heal, 17cm scar on ankle, unsightly right foot Pl suffered significant pain and discomfort McLaughlin v McDaid [2018] IECA 5 Trial Judge awarded Pl 100,000 in respect of pain and suffering to date and a further sum of 150,000 in respect of future pain and suffering

Special Damages: 3,000 Sum of 200,000 for future aid and appliances into the future Appellants claimed that quantum of both general and special damages was excessive McLaughlin v McDaid [2018] IECA 5

Court of Appeal classified injury as severe when compared to typical personal injury cases. This was a permanent and life changing injury Age of Pl in respect of the injury was significant and impact on his social life taken into consideration in coming to conclusion that 100,000 award for general damages over a 13 year period was not excessive Similarly 150,000 was not seen as excessive for future pain and suffering

CA stressed that Pls injury will endure for the rest of his life Recent HC Caselaw Kampff v Minister for Public Expenditure and Reform [2018] IEHC 371 First, this Court must apply scepticism and common sense to claims made by a plaintiff/ applicant regarding the extent and effect of the injuries in support of their claims for damages/compensation not because of any presumed dishonesty on the part of the plaintiff/applicant, but rather in light of human nature Secondly, to the extent that reliance is placed on the Book of Quantum, this Court must consider the effect of the recent downward recalibration, in some cases of 45-50%, by the Court of Appeal on awards of damages for personal injuries Thirdly, this Court must determine if the proposed amount for damages for pain and suffering for the personal injury in question is proportionate, bearing in mind that the

cap on damages for pain and suffering is 450,000 for a catastrophic injury such as a paraplegia Fourthly, this Court must determine if the proposed amount is reasonable in light of the fact that it takes an average person a month to earn 3,800 and a year to earn 45,611 B.D. v The Minister for Health and Children [2019] IEHC 173 Compare and contrast this judgment with the judgment in Kampff Nor can I accept the proposition advanced on behalf of the Minister that the object, purpose or intention of the principles enunciated in Kearney v. McQuillan

[2012] 2 I.L.R.M. 377, Nolan v. Wirenski (supra), and Payne v. Nugent (supra), relied on in Kampff v. Minister of Public Expenditure (supra) was to recalibrate downwards the level of general damages in personal injuries actions; scrutiny of those decisions warrants a quite different conclusion. Circuit Court Jurisprudence The average award at Circuit Court level rose, to 19,304 from 18,488 in 2017, a rise of 2.8%. What effect are the HC and CA judgments having on the Circuit Court?

Personal Injuries Commission Second and Final Report published in July 2018 Comparison between Ireland and other Countries Provision of guidelines for awards of general damages Introduction and Powers of a Judicial Council

Recent Law Society Gazette Article challenged a number of the findings of the PIC2 Report (Crash Test Dummies, Martin Kenneally) Personal Injuries Update MARK CURRAN BL Barrister-At-Law Accredited Mediator Qualifications BBL (UCD) LLM(Cantab) Accred. Mediator (Friary Law) Foreign Bars New York State Bar e: [email protected]

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