The Personal Injury Guidelines (‘the Guidelines’) came into operation on 24 April 2021, with the intention of achieving greater consistency in awards for varying types of personal injury. Given that the introduction of the Guidelines is still relatively recent, their operation in practise and their overall impact are still being keenly considered.
Constitutionality of the Guidelines
A constitutional challenge to the implementation of the Guidelines was made in Delaney v Personal Injuries Assessment Board & Ors [2022] IEHC 321. The plaintiff injured her ankle and knee as a result of a fall on a footpath. On 21 May 2021, PIAB awarded her general damages of €3,000 pursuant to the Guidelines. It was argued that if the Book of Quantum (which had been replaced by the Guidelines only weeks earlier) had applied, an award in the region of €18,000 – €34,000 was likely. The constitutional challenge was rejected by the High Court who noted that while the plaintiff had a right to have her damages assessed in accordance with well-established legal principles, there was no constitutional right that entitled her to a particular sum of money. The effect of the application of these principles is that the level of damages changes over time. It also held that the Guidelines did not encroach on judicial independence as the courts have discretion to depart from them pursuant to section 99 of the Judicial Act 2019.
The judgment was appealed to the Supreme Court, who agreed that the case involved issues of importance that warranted a direct appeal to that court. A decision on the appeal is awaited.
The Guidelines before the Courts
While the Guidelines did appear to initially have a stark effect on the rate of acceptance of PIAB assessments, by June 2022 the acceptance rate had climbed to 48%, as compared with a 51% acceptance rate in 2020, before the Guidelines were introduced. It is not clear, therefore, if there will be a trend for more cases to be litigated before the courts.
In McDonnell v Upton Foods Limited [2022] IEHC 680 the plaintiff’s car was struck by a van driven by the defendant’s employee and he suffered a tear to the rotator cuff in his right shoulder. The plaintiff also claimed to have suffered an adjustment disorder and depression following the accident. He underwent surgery, was unfit for work for a period of 3 months after the operation and continued to suffer symptoms and reduced mobility, although with improvements over time. The plaintiff argued that the injury came within the serious category of the relevant shoulder injury, with persisting symptoms notwithstanding surgery. This category had a range of damages of between €40,000- €75,000 and the plaintiff argued that €60,000 was an appropriate award. The defendant argued a figure of between €35,000- €40,000 was an appropriate sum for damages with reference to the Guidelines. The court was satisfied that the plaintiff suffered considerable pain in his shoulder, which had been largely but not completely alleviated by the surgical operation. The court assessed general damages for the shoulder injury at €55,000. A €20,000 uplift was given in respect of psychiatric injuries suffered on account of the accident.
Multi Injury Cases
The Guidelines set out an approach for assessing damages in multiple injury cases which involves identifying the most significant injury, and the appropriate bracket, and thereafter applying an ‘uplift’ to the award to take account of lesser injuries. A number of recent decisions have considered the operation of such an uplift in practise.
The High Court action of Lipinski (a Minor) v Whelan [2022] IEHC 452, in which the court noted that the Guidelines set out the procedure or roadmap that a trial judge must have regard to when considering the effect of multiple injuries on the level of damages to be awarded. The trial judge, when considering an uplift, should ensure that the plaintiff is fairly and justly compensated for all of the effects of the lesser injuries in order to arrive at an overall award that is proportionate and just.
The case involved a schoolgirl who was injured in an accident and where it was agreed that a psychological injury of PTSD was the dominant injury. It was held to be at the top end of the moderate damages bracket and accorded a value of €35,000 (counsel for the plaintiff had contended that the award should be between €40,000 – €50,000). The court considered what uplift should then apply in respect of other injuries, ultimately awarding €25,000 for the balance of injuries, which included a linear abrasion on the back of her thigh, multiple minor soft tissue injuries and a minor abrasion on her left shin.
In the High Court decision of McHugh v. Ferol, [2023] IEHC 132 the court noted that there was no reason that any uplift could not exceed the value of the dominant injury and it favoured an approach whereby each of the additional injuries would be categorised according to the bracket that it would fall into were that the main injury and then discounted to allow for the temporal overlap of injuries. In that case, the value of the dominant injury was assessed at €60,000, with a value of each of the additional and lesser injuries totaling €65,000. The court considered a discount of 50%, an award of €32,500, would be fair and just compensation for the additional injuries.
A September 2023 Court of Appeal judgment in Zaganczyk v John Pettit Wexford Unlimited Company & anor [2023] IECA 223 involved an appeal against a High Court assessment of damages, pursuant to the Guidelines, of €90,000 for the plaintiff, who suffered injuries when a gas oven exploded at her workplace resulting in burn injuries to her face, neck and arm/hand. In addition, she suffered psychological injuries and PTSD was agreed by the parties to be the dominant injury.
The court noted that comparable cases should attract comparable awards to allow for the required proportionality, consistency and predictability. The judgment considered the approach of the courts in considering an uplift in multiple injury matters and it noted that the plaintiff is entitled to be compensated for all the suffering they have endured, be it from one or ten discrete injuries suffered at the same time. Of note, the Court of Appeal also stated that the approach of the High Court in the McHugh case, in terms of calculating the uplift, “has much to commend it”. It also discussed the merits of a trial judge carrying out a useful exercise of considering how the overall award compares with other individual categories in the Guidelines and if an obvious mismatch emerges, it suggests that the requisite proportionality has not been achieved. In other words, such an exercise can provide a helpful “reality check”.
In terms of the case itself, the Court of Appeal held that it was questionable if there was justification for the High Court approach of ascribing one figure to the plaintiff’s PTSD and then a separate figure for her alcohol abuse disorder and depression. It further held that the High Court erred in treating the PTSD as ‘serious’. The Court of Appeal held that a cumulative award for psychiatric injury of €65,000 clearly offended the doctrine of proportionality and was out of kilter with the award in the Lipinski decision and awards under the Guidelines. In terms of applying the aforesaid reality check to consider the proportionality of a €90,000 general damages award, it was noted, amongst other examples, that significant permanent disability attracts damages in the range of €70,000 to €100,000. The court was satisfied that the award by the High Court was disproportionate to a degree that rendered it an error of the law and the award was reduced to €60,000.
Conclusion
It is clear that the position with awards for general damages under the Guidelines is still not fully settled, so that future judicial interpretation of the Guideline and the decision of the Supreme Court in the Delaney case are keenly awaited.
