An end to the personal injury lottery?
Emma McKeown v Alan Crosby and Mary Vocella [11.08.20]
In a decision that grabbed a number of headlines, Mr Justice Seamus Noonan, a Judge of the Court of Appeal, has significantly reduced an award of damages from €76,000 to €41,000 for a whiplash injury and has highlighted the importance of the appropriate reference to the Book of Quantum by the judiciary and practitioners alike.
The plaintiff was involved in a road traffic accident in March 2017 and suffered a whiplash injury, from which she recovered within a relatively short period of time, save for symptoms in her lumbar spine which persisted up until the date of the trial. Liability was not in issue.
The High Court
The trial judge found the plaintiff to be an honest and credible witness who had not exaggerated her symptoms.
The plaintiff was awarded the total sum of €76,000 comprising of €65,000 in general damages, €5,000 for damages into the future and special damages of €6,000. The defendants appealed on quantum on the grounds that it was excessive.
In considering the appeal (and ultimately making the downward adjustment in quantum), Judge Noonan made some useful observations in relation to personal injuries awards and noted the following:
- The successful operation of any personal injuries litigation system is highly dependent on predictability:
It cannot be fair to either plaintiff or defendant that the value of their case depends on the identity of the trial judge. Personal injury litigation should not be a lottery and plaintiffs and defendants alike are entitled to reasonable consistency and predictability.
- Damages awards must be proportionate. An award of damages needs to be considered in two respects, first against the yardstick of the cap for the most serious injuries and where in the hierarchy of damages the injury under consideration fits. Secondly, the award must be considered in the light of awards given by courts for similar injuries.
- Proportionality also needs to be considered in a wider context with regards to prevailing societal factors. Judge Noonan noted that the rising costs of liability insurance is a significant outgoing for most people and he acknowledged that the courts were mindful of the impact that awards have on society as a whole.
- While stressing the importance of The Book of Quantum, Judge Noonan accepted that it is more suited to relatively straightforward cases where the injury clearly falls into one category more easily than another. In complex cases with multiple injuries, it is of little assistance and there are many injuries which it does not capture at all such as scarring or psychiatric injuries.
- Fundamental to the successful operation of any system of monetary compensation is consistency and predictability and the absence of reference to the Book of Quantum in judicial consideration was surprising given that the courts are “mandated to have regard to the Book of Quantum by section 22 of the Civil Liability and Courts Act 2004”.
The decision of the Court of Appeal is an important and timely restatement of the basic principles by which courts should assess damages awards and emphasises the need for proportionality and predictability. The decision further stresses the importance of utilising the Book of Quantum to achieve uniformity of awards, where appropriate.
Judge Noonan’s acknowledgment that the courts are mindful of the impact that awards have on insurance liability costs and the resultant impact on the public purse, should be very welcome to the insurance industry.
Mr Justice Noonan is a member of the recently established Personal Injuries Guidelines Committee which was introduced by the Judicial Council Act 2019. The Committee is due to publish guidelines on the level of damages, which once adopted will replace the Book of Quantum. It is hoped that this Committee heralds a new dawn for predictability and proportionality in personal injury awards.