1983 WJSC-SC 3454
PATRICIA REDDY
v.
JOHN BATES
Subject Headings:
DAMAGES: assessment
29 07 1983
[HEDERMAN CONCURRING]
In this action which was tried before Mr. Justice D’Arcy and a jury damages amounting to £551,354 were awarded to the plaintiff. The trial was confined solely to damages and the defendant has appealed against the award of damages on the ground that the damages were excessive. The learned trial Judge broke down the questions into appropriate headings and the jury assessed damages under the followingheads:-
1. Special damages to date:
This is an appeal by the defendant against an award of damages by a jury, after trial before D’Arcy J., in July 1982, in a total sum of£551,354, the composition of which I shall detail later. The sole issue at the trial was the amount of the damages.
The plaintiff was born in the City of Waterford on the 14th March 1955, being the youngest of eleven children; her parents are still alive and well, now in their seventies, and it is proper to say at the commencement of this judgment that the evidence showed a striking example of a united and loving family who, from the time of a dreadful accident being sustained by the plaintiff, have gone to very great lengths to alleviateher distress and comfort her in every way. No doubt such care has contributed significantly to her recovery, such as it is.
The plaintiff was educated in the Presentation Convent in Waterford where she got the Intermediate Certificate standard which she passed with three honours then obtaining clerical work locally, including a period of 2½ years with the P.M.P.A. Insurance Company Ltd. in Waterford, by which Company she was employed in Dublin at the time of the accident, and which Company, incidentally, insured the present defendant. After 2½ years in Waterford with the P.M.P.A. she stayed with one of her sisters in Cheshire in England for about a year, working part-time for her brother-in-law and doing some travelling on the Continent. She returned to Dublin and recommenced employment with the P.M.P.A. as a clerk typist and was so employed, and living in Dublin, when she was involved in a motor accident on the 4th June 1979, in which accident she sustained serious injury which may be summarised as severe damage to the brain stem and considerable damage in the upper part of the brain. Whilst the injury may be so summarised, it wouldbe wrong to seek to summarise the effects of these injuries as detailed in the evidence of doctors and members of the plaintiff’s family in the course of the trial. In the course of his submissions, which lost nothing by their brevity, Mr. Maguire, leading Counsel for the plaintiff, described the result as “a tragic combination of physical disability and memory loss for a young lady who had suffered so much that she had wished to die and, still, in moods of depression wished to die”. She had spent a total of eighteen months in hospital had undergone four major operations, one of them unsuccessful, suffering, as she does, from a rare complication in the excessive growth of bone. I refrain from citing further from the graphic picture painted by Mr. Maguire, not because of any question as to its accuracy, but, rather, to prevent undesirable comparisons of the amount of damages in one case of personal injury with another, since in these myriad cases of single instances, no satisfactory method of comparison can be evolved. I do not accept, however, the proposition that the plaintiff’s plight is worse than that of a paraplegic;I test such a submission by seeking to consider what would be the attitude of a paraplegic to such a view – can it ever be said that a person permanently confined to a wheel-chair is in a better position than someone who, albeit with difficulty, can nonetheless walk about unaided by another.
The conventional description of damages awarded for personal injuries sustained through the tortious act of another is to ask a jury to award such sum as will, so far as money can do so, put the plaintiff in the same position as he or she would have been if the tortious act had not occurred. In any case where the damages include any element other than direct compensation for objective monetary loss, it is self-evident that the method of compensation is imperfect. Imperfection, however, whilst offending against the principle of justice, is not confined to the remedies at law available for a variety of wrongs, both public and private. Imprisonment of a criminal provides no true remedy for an individual damaged by the crime; damages for defamation cannot recall the defamatory matter. The law is, indeed, always an imperfect andinadequate human division into compartments of the divine concept of justice. It is, to say the least, unlikely that an individual would willingly submit to a given injury on being offered a sum of money which might be thought commensurate with such an injury when damages came to be assessed by a jury. Equally well, it would be poor consolation to the injured individual to be given the opportunity of inflicting the self-same injury on the person who had injured him. In the result, the formula already outlined, albeit unsatisfactory, is the established method and must be used both at the trial and as the template to be applied by this Court when called upon to review any such award. There are, however, certain principles that appear to me to be of general application when such an award comes for review:-
1. Direct monetary loss. The plaintiff must provide a concrete evidential basis for this calculation both as to past and futureloss.
2. In the calculation of future loss, that evidence must include a satisfactory basis of assessment by way of an appropriate multiplier being applied to a reasonably accurate continuing item of loss.
3. The application of such a multiplier is only as a guide -it is a pathway and not a tram-line – coloured, as the jury may consider proper, by such factors, if relevant, as marriage, taxation, and prospects of permanent employment. This is not to exclude other factors which may prove relevant.
4. The total of the amount so calculated, as to loss, past and future, is not, of itself, an argument for interference with the award. In other words, the fact that such total may appear to be a high figure is no ground for interference, where each individual figure, making up the total, is reasonably supportable on the evidence.
5. In contrast with the approach to a review of an award under the headings of past and future actual loss, the courts approach in reviewing an award, commonly called that of general damages, may, essentially, be one of first impression. Such damages are frequently stated to be for pain and suffering; they would be better described as compensation in money terms for the damage, past and future sustained to the plaintiffs’s amenity of life in all its aspects, actualpain and suffering, both physical and mental, both private to the plaintiff and in the plaintiff’s relationships with family, with friends, in working and social life and in lost opportunity.
6. It is only in respect of general damages that it is appropriate to adopt the method of approach set out by the former Supreme Court in – 90 ILTR 92.
7. In such a review of general damages, in order to warrant interference with the award, the disparity between the views of the individual members of this Court and each item of the award itself, however large it may be expressed in isolation, must be a significant percentage of that item of the award, as a general rule not less than 25 per cent. Despite pressures from time to time to remove, by legislation, from the province of a jury the assessment of such damages, the Legislature has, consistently, refused to do so. This factor emphasizes that this Court should be reluctant so to interfere and, in particular, to avoid relatively petty paring from or adding to awards.
8. The annual or other income which may, on its face, bereaslsed by the whole or any part of a total award is irrelevant to any such review. I profess no competence to determine the relative effects of varying interest rates, the falling value of money, the hazards of even the most apparently solvent companies in which money may be invested for capital growth and the many other factors which exercise the minds of merchant bankers and the like, not always withsuccess.
The damages, in the instant appeal, were awarded under sixheadings:-
(a) Special damage to date, including loss of earnings, -£41,404.00. This was an agreed figure and does not requirecomment.
(b) For dental treatment – £950.00. This item was the subject of the notice of appeal, but has not been pursued.
(c) General damages Lo date – £100,000.00.
(d) Loss of earnings in the future – £144,000.00.
(e) Cost of housekeeper in the future – £115,000.00.
(f) General damages in the future – £150,000.00.
The plaintiff sought to make a case that such damages should be assessed on the basis of her prospects of her earning,while working in England, a salary significantly greater than that which she enjoyed with the P.M.P.A. Insurance Co. Ltd. It is clear that the jury rejected this claim as one wholly unsustainable; it is equally clear that the jury did not limit the plaintiff to the level of earnings, subject to average increases, that she would have earned with the Insurance Company, which would have limited this item certainly to not more than about £123,000.00. At the hearing, no attempt was made to determine the impact, if any, of marriage statistics or taxation on this item of assessment. I do not apportion responsibility for this absence of evidence on either side; it seems to me to be the responsibility of both sides to explore such questions, and were it not for the expressed request on behalf of both parties that in this as in all other items of the jury’s award, this Court, if interfering with any such item, should reassess the same, I would be disposed to direct a new trial on this issue. It may well be, however, that the impact of these two factors would have been negligible – that those employed as the plaintiff was by the Insurance Company do not give up their employment on marriage, on the one hand, and that the amount of the multiplier would be so increased,on the other hand, as to compensate for the reduction in themultiplicand.
The learned trial Judge clearly and succinctly directed the jury that they were entitled to award the plaintiff a sum significantly greater than the figure of £115,000.00 under this heading, albeit that he made a miscalculation in the multiplier which he applied by way of example. The jury, however, had heard the evidence – indeed the relevant evidence was that of the last witness whom they heard, and I am not prepared to hold that the jury was misled by the Judge’s calculation. No objection was taken at the end of the charge to the Judge’s suggestion that the jury might, as it were, water down the total under this heading, and I would not entertain any such objection now. For that matter, I would wish to express in the strongest terms my reluctance to entertain any criticism of the rulings of or charge bya trial Judge when no such objections were made at the trial. I would uphold this item of the award.
Despite the observations I have made in respect of criticism of the total of the award, it does seem to me appropriate that this Court, in reviewing awards under the heading of general damages should look both to the items separately and as a whole. Mr. Maguire has painted a moving picture of the plaintiff’s plight; the members of this Court have seen the plaintiff in private, attended by her solicitor and the solicitor for the defendant. She is, obviously, a rather pathetic young woman, grievously injured and, as was said, having to face some forty or fifty years of life suffering from a severe impairment of that enjoyment of life to which she was entitled. She is, however, far from being as disabled as a paraplegic or a tertraplegic – there are many things she can do which are quite outside their compass. It may well be that awards such as she obtained can be justified in the case of those who sustain such dreadful paralysing injuries. Such is not the case here. Applying, as I do, the tests outlined in case, I am of opinion that both separately and jointlythe awards under this heading bear no reasonable relationship to the injuries sustained and must be set aside. In reassessing these amounts, however, I believe this Court should seek to adopt a generous approach. I would assess the damages accordingly at £60,000.00 – the figure suggested by Counsel for the defendant for past general damages and£100,000.00 for future damages, which sum is £10,000 more than that suggested by such Counsel.
In the result, I would reduce the total award by the sum of£90,000. The plaintiff had cross appealed the award in respect of the cost of a housekeeper, but that appeal was not pursued.
I have not heard argument and I reserve for future consideration if necessary the question as to whether or not, without the consent of both parties, this Court has power to substitute its own assessment of damages in place of that of a jury.
[1983] 7 JIC 2912 JICL#1983#441#1#072903 83V12C03A
x1983 WJSC-SC [1983] 7 JIC 2912 REDDY v. BATES http://www.justis.com/pdf2/lrpdf/jicl/1983/1983SC072903.PDF JICL 584 1983 240 441 1 250
