The Court of Appeal has substituted a High Court award totalling €90,000 in general damages for physical and psychological injuries sustained by a woman in a gas explosion at her workplace.
Delivering judgment for the Court of Appeal, Mr Justice Seamus Noonan commented that when compared with various individual injuries covered by the Personal Injuries Guidelines, the award was “disproportionate to a degree that renders it an error of law” and reduced the award for general damages to €60,000.
Background
The plaintiff worked as a chef in the delicatessen area of a SuperValu store in Wexford, owned by the defendants.
On the morning of 12 January 2020, the plaintiff was engulfed in flames when a gas oven exploded. She suffered burn injuries to her face and upper body, going on to develop psychiatric injuries and to abuse alcohol. Her claim proceeded as an assessment of damages in the High Court, and the medical reports and special damages were agreed by the parties.
High Court
The plaintiff’s trial took place on 8 December 2022, in which she gave evidence of her scarring and mental distress and absence from work for nine months, culminating in a suicide attempt. Under cross-examination, the plaintiff agreed that she was back enjoying work and her post post-traumatic stress disorder had improved. She agreed that four weeks following her injury, her physical injuries had cleared up. The plaintiff also agreed that she had not pleaded her alcohol use disorder and anti-depressant use in her claim, admitting that she was embarrassed upon re-examination by her counsel.
Reports from a number of the plaintiff’s treating physicians confirmed that the plaintiff had sustained significant injuries, but had made an excellent recovery without obvious scarring on her face, ear or neck. Some altered sensation remained around the plaintiff’s lip, and scarring was visible on her left forearm, but her mental injury was more significant and was classed at a “moderate” level by her consultant at one year post-injury, with complete resolution of her alcohol use disorder and her no longer meeting the criteria for PTSD at 26 months.
Applying the Personal Injuries Guidelines, the High Court awarded €45,000 for the plaintiff’s PTSD, found to be on the “lower end of the serious category”. Noting that the plaintiff’s alcohol and depression difficulties were diagnosed separately, a further sum of €20,000 was awarded, along with €25,000 for her burns and scarring. Considering that the damages awarded “holistically” reflected what was fair and just to the plaintiff and the defendant, the High Court awarded €90,000.
The defendants appealed, contending that the trial judge was wrong both to classify the plaintiff’s PTSD as “serious”, and to separately award two sums for psychiatric injury, resulting in her overcompensation. The defendants also asserted that the award in respect of the plaintiff’s scars was too great, with the trial judge having described them as “not very serious” and then failing to identify firstly the bracket of the Guidelines to which they belonged, and secondly the factors relied upon in reaching that assessment.
Court of Appeal
Mr Justice Noonan proceeded to consider the application of the Guidelines in multiple injuries cases, noting the necessity to identify the most significant injury and the bracket to which it belongs, and then to uplift the award to take account of the lesser injuries. Noting his comments in the pre-Guidelines case of Meehan v Shawcove Limited [2022] IECA 208, the judge reiterated the importance of proportionality by reference to the €550,000 general damages limit under the Guidelines.
Remarking upon the consideration of the Guidelines in McHugh v Ferol [2023] IEHC 132, Mr Justice Noonan commended the approach of Ms Justice Deirdre Murphy in assessing the uplift, categorising each additional injury according to the bracket that it would fall into if it were the main injury, and then discounting the award to account for the temporal overlap of the injuries. Mr Justice Noonan noted that “some assistance may be derived from a consideration of how the overall award compares with other individual categories in the guidelines”, finding that this is a useful exercise and can provide a “reality check”.
He proceeded to analyse the approach of the High Court, finding that a “number of errors” in approach were evident in the assessment of the plaintiff’s psychiatric injury, that the parties had agreed her PTSD was moderate and unlikely to continue into the future, and that the separate consideration of PTSD on one hand, and of alcohol use disorder and depression on the other, was “questionable in principle”.
Comparing the plaintiff’s case with that of Lipinski (A Minor) v. Whelan [2022] IEHC 452, Mr Justice Noonan found that €35,000 was the maximum possible amount available for moderate PTSD, and that there was no evidential basis for the award of €65,000 made by the trial judge.
Comparing the plaintiff’s award with the Guidelines for serious spine, eye, hearing and fracture injuries, the judge commented that “this level of injury could not on any view be equated with the injuries suffered by the plaintiff in the present case”, finding that an aggregate €90,000 award was “disproportionate to a degree that renders it an error of law”.
Agreeing with the defendants that the trial judge had not identified the relevant Guidelines which led him to award €25,000 for the plaintiff’s scarring, but as the award fell within the broad range prescribed by the Guidelines and as the trial judge viewed the plaintiff’s scar, no error of law was established. Though Mr Justice Noonan considered it “unsatisfactory” that no indication was given of how the uplift principles were applied in the context of that award, “that, without more, is not sufficient in my view to displace it”.
Conclusion
Ultimately, the Court of Appeal reduced the award for general damages to €60,000 which, together with the agreed special damages of €3,181.90, resulted in a decree of €63,181.90.
Zaganzyck v. John Pettit Wexford Unlimited Company & Anor [2023] IECA 223
