Orla Keane of Arthur Cox writes about the demise of generous personal injury claims.

Damages for pain and suffering in personal injury claims have been cut by up to 50% in a number of recent Court of Appeal decisions.

EMEGING TREND

The Court of Appeal decision in Payne v Nugent, delivered in November 2015, signalled the first indication of a new trend in the level of personal injuries awards in modest injury cases. The case concerned a plaintiff who suffered moderate shoulder, neck and back injuries in a road traffic accident. The Court reduced the High Court award for general damages (damages for pain and suffering) by 46%, from €65,000 to €35,000.

General damages were again reduced by 46%, from €120,000 to €65,000 in Nolan v Wirenski. This case also concerned a road traffic accident in which the plaintiff suffered modest injuries to her shoulder, thumb and hand.

In a third road traffic accident case, Shannon v O’Sullivan, a couple who suffered modest injuries to their necks and adverse psychological effects, saw their High Court award halved, from €130,000 to €65,000.

Most recently, in Cronin v Stevenson the Court reduced the High Court award for general damages by 42% from €180,000 to €105,000. This was also a case where the plaintiff suffered modest neck and back soft tissue injuries arising from a road traffic accident.

However, the Court is conscious of the need to award higher damages where the injuries are more severe. In Murphy v County Galway Motor Club Ltd, the Court awarded the plaintiff, whose leg was amputated as a result of a motor vehicle accident, €275,000 in general damages. This was an increase of 38% on the High Court award of €200,000. The Court decreased the proportion of contributory negligence attributed to the plaintiff from 66.66% to 25%.

GENERAL PRINCIPLES

In the above cases, the Court of Appeal identified a number of general principles that should be applied by trial judges when assessing the appropriate level of general damages in personal injury cases:

»The trial judge must consider and set out the effect of the injuries sustained by the plaintiff on the plaintiff ’s lifestyle.

»The plaintiff ’s accuracy and reliability are very important, as is his/her credibility. The trial judge should carefully evaluate the plaintiff ’s evidence. This does not mean that the judge should adopt a sceptical approach, but he/she should bear in mind that the onus is on the plaintiff to prove each particular element of the case.

»The trial judge should have regard to where the injuries fall within the entire spectrum of personal injury claims ranging from very modest claims to catastrophic claims.

»Any general damages awarded must be both reasonable with regard to the injuries sustained and proportionate to the awards usually made to plaintiffs in respect of injuries which are of greater and lesser import.

»Minor injuries should attract appropriately modest general damages, middling injuries moderate damages, severe injuries significant damages and extreme or catastrophic injuries damages in or around €450,000.

»This does not mean that €450,000 is the limit for general damages, but it is generally accepted that the upper range for compensation usually rests in and around that mark.

»Special damages (i.e. damages for loss of earnings, medical expenses etc) and general damages should be assessed separately.

IMPACT ON HIGH COURT DECISIONS

The recent Court of Appeal decisions appear to be having an impact on High

Court awards. In Walsh v Tesco Ireland Ltd, the High Court, referring to the principles set out by the Court of Appeal, awarded €260,000 in general damages to a plaintiff who suffered serious back and bladder injuries resulting in the insertion of a spinal cord stimulator.

In Woods v Tyrell Junior, the High Court, again referencing the recent Court of Appeal decisions, awarded the plaintiff, who suffered significant psychological as well as other less significant physical injuries, €120,000 in general damages.

Generally speaking, this emerging trend is a welcome development. It should lead to a more consistent and fairer assessment of damages and will make it easier for both parties to more accurately value claims, leading in turn to the earlier disposal of claims. This should have a knock on effect in reducing the cost exposure on both sides.