While the court agreed that the accident in the proceedings was “horrendous”, the court held that the trial judge erred by awarding €50,000 for the mere occurrence of the accident itself.
The court held that the trial judge’s “reasoning and explanation for the award is not set out in the judgment to any satisfactory degree” and that there was a failure to explain “the precise engagement with the evidence which led him to the conclusions” in the decision.
Background
The plaintiff was a woman who had been a passenger in a road traffic accident with her two children and her mother. The defendant’s vehicle struck their car and caused significant damage to all the passengers in the car. All four occupants were trapped in the car and had to be cut out of it.
As a result of the accident, the plaintiff suffered serious injuries to her bowels and her wrist. Her small intestines were perforated and it was agreed that these were life-threatening injuries. The surgery to repair the damage created a large scar on her abdomen. The plaintiff’s wrist was also fractured in multiple places and dislocated.
Further, the plaintiff suffered post-traumatic symptoms arising from the memory of the accident, along with anxiety which developed into a panic disorder. These symptoms arose partly from seeing her son unresponsive in the car and of the fact that her daughter was given Last Rites in intensive care.
In the High Court, the trial judge delivered an ex tempore judgment in which he stated that he had considered all the expert evidence in the matter and had regard to the Book of Quantum. It was held that the plaintiff was a “very truthful witness” and there was no evidence of exaggeration of her injuries.
The court dealt with each of the different injuries in a sequential manner. The trial judge began by stating that the accident and aftermath were “horrendous” and awarded €50,000 to the plaintiff for that fact alone. The court awarded €60,000 for the “serious” wrist injury and €50,000 for the psychiatric injury. It was also held that the scar was significant.
While the court did not directly refer to the bowel injury, it was held that the cumulative assessment of all the injuries was €310,000. It was held that there was some overlap between the injuries, and the award was reduced to €210,000, plus special damages of €9,750.
The defendants appealed the decision to the Court of Appeal, arguing that the trial judge had excessively compensated the plaintiff and had failed to give reasons for the figures. It was argued by the defendants that the award was excessive having regard to the plaintiff’s circumstances which included that she had no ongoing medical treatment at the date of trial, was not taking medication and returned to normal working life four months post-accident.
Court of Appeal
Delivering judgment in the case, Ms Justice Mary Faherty began by outlining the well-established case law relating to scenarios in which an appellate court would interfere with a trial judge’s award of general damages. These cases included Reddy v. Bates [1983] I.R. 141, Rossiter v. Dun Laoghaire Rathdown County Council [2001] IESC 85 and Nolan v. Wirenski [2016] IECA 56. Generally, the courts had held that a cautious approach needed to be taken by appellate courts when reviewing an assessment of damages and that a serious error needed to be identified before a different award could be made.
The court held that the “fundamental difficulty” in the case was that the trial judge did not explain how or why he made his decision on the level of damages to be awarded. There was no detail in the trial judge’s assessment of the various injuries or why an award of €50,000 was provided for the fact of the accident itself.
It was also noted that the court was “left to deduce” that €150,000 of the initial €310,000 was for the bowel injury and scar, because this was not mentioned by the trial judge. The court was also critical that there was no assessment of why the specific reduction of €100,000 was applied.
The court cited the comments in the Nolan case and Doyle v. Banville [2012] IESC 25 regarding the importance of a judge engaging with the key elements of a case and explaining why one side’s position was preferred to the other. In the present case, the failings of the trial judge required the Court of Appeal to consider the evidence and assess the quantum of damages.
In considering the evidence, the court decided to adopt the “roadmap” to assessment outlined in the Nolan case. The court held that the plaintiff had clearly suffered a terrible accident, having been hospitalised for eight days. The expert evidence did not differ on the life-threatening nature of the bowel injury. It was also held that the wrist injury had fully healed four months after the accident, although psychological treatment took longer.
In assessing future pain and suffering, the court held that the plaintiff continued to experience abdominal pain and was likely to suffer from abdominal adhesions. The expert evidence showed that the plaintiff’s prognosis fell into the “severe to permanent” category in the Book of Quantum.
The court also placed the wrist injury into the “severe to permanent” category on the basis that she faced potential deterioration into the future. However, it was noted that the plaintiff had returned to work without difficulty, so any award should be at the lower end of the range, the court said.
Finally, the court held that the plaintiff suffered very significant psychological injuries for a period of time after the accident. However, the plaintiff recovered from those injuries over the proceeding four years and was able to obtain a third-level degree.
Having made this assessment, the court determined that €175,000 was the appropriate sum for the plaintiff. The award consisted of €135,000 for pain and suffering to date and €40,000 for future pain and suffering.
Conclusion
The court allowed the appeal and reduced the level of damages awarded to the plaintiff. It was noted that the new award was not grossly disproportionate to the original award in the case and fell within the 25 per cent “rule of thumb” outlined in Reddy v. Bates.
Accordingly, it was suggested that no order for costs in the appeal was appropriate, or that it might be appropriate for the plaintiff to seek a portion of her costs. The court invited further submissions on the matter.
About this case
- Citation:[2021] IECA 247
- Judgment:External link
- Court:Court of Appeal
- Judge:Ms Justice Mary Flaherty
