The Court of Appeal Judgment as delivered by Mr Justice Noonan of the 11th August 2020 in the case of Emma McKeown v Alan Crosby and Mary Vocella [2020] IECA 242 is significant in the context Personal Injury Litigation in this jurisdiction.
The facts of this case are quite unremarkable.
Award of the High Court
The Plaintiff, following a road traffic accident was awarded at Dundalk High Court on the 11th December 2019 the sum of €70,000 comprising of €65,000 in general damages up until that date and €5,000 into the future, together with agreed special damages in the amount of €6,000, making a total award of €76,000.
The Defendants in the case appealed the quantum of the award on the basis that it was excessive.
The facts of the case
The road traffic accident giving rise to these proceedings occurred on the 21st March 2017 where it was described the Plaintiff’s vehicle had received a significant impact resulting in about €3,000 worth of damage to the Plaintiff’s vehicle. The airbags in the Plaintiff’s vehicle had not activated.
Liability was not in issue. The Plaintiff suffered whiplash type injuries from which she recovered within a relatively short period, save and except for lower lumbar symptoms which prevailed over a sustained period up to the date of trial (two years nine months post-accident).
Judicial acknowledgement of public conscience
Paragraph 21 of the Judgment to my mind represents the most ground-breaking element of this Judgment;
Judge Noonan overtly addresses what he describes as “widespread public discourse, debate and dispute” in relation to the extent of awards made by the Courts in Ireland and he also indicates that members of society bear the cost of a compensation system whether through the payment of insurance premia in the case of Private Defendants or taxes in the case of Public Defendants.
This is a clear acknowledgement by a senior member of the Judiciary that perceived excessive awards can have a direct affect on society in a context of payment of insurance premia for motor, public or employer’s liability insurance.
Book of Quantum
Traditionally, the Book of Quantum, notwithstanding it’s review in 2016, has to a large extent little bearing on awards handed down by the Court in the context of Personal Injuries.
Judge Noonan points out that in the present case, the Book of Quantum had a role to play where injuries are quite straight forward and where the injury falls more clearly into one or more of the defined Categories. He does acknowledge that the Book of Quantum, however, has limitation in complex cases with multiple injuries or cases with injuries that it does not capture at all, for example scarring or psychiatric type injury.
Judge Noonan in reducing the Plaintiff’s award as handed down by the High Court seems however to rely quite heavily on the Book of Quantum suggesting that the Plaintiff’s back injury in this instance fell into the minor category, or at best, between the minor or moderate category, considering that the band of a moderate category is between €21,400 and €34,000, Judge Noonan made an award for general damages of €30,000 reducing it from the initial finding for general damages of €65,000.
Judge Noonan emphasises the importance of transparency and that a Trial Judge in arriving at an award must have a stated and clear rationale for doing so.
Both Plaintiffs and Defendants should also be cognisant of Judge Noonan’s words where he feels that it would assist the Court’s considerations to hear submissions from both Plaintiff and Defendant as to how the Book of Quantum should be applied or whether it should be applied at all.
Draw of Judge
Paragraph 28 of The Court of Appeal Judgment addresses the perceived non-uniform application of the law in the handing down of Personal Injury Awards.
Judge Noonan acknowledges that it is clear that the non-uniform application or the perceived draw of Judge, whether it be generous or otherwise, can give potential for injustice.
Judge Noonan is of the view that Personal Injury litigation “should not be a lottery” and that Plaintiffs and Defendants should be entitled to reasonable consistency and predictability and it is on that basis again that the Court of Appeal are in this judgment extolling the virtues of the Book of Quantum, or its successor in the form of the awaited Judicial Guidelines.
Shortcomings of Plaintiff
Whilst the Court of Appeal does not criticise the Plaintiff directly, it is clear that passing references to various matters contributed towards the reduction in the Plaintiff’s Award in the Court of Appeal.
In the first instance, the Court of Appeal, whilst not saying so in so many words, seems surprised that whilst the Plaintiff attended her GP and received pain relieving medication from her GP there was no report available to the Court from this medical practitioner.
It is also pointed out by the Court of Appeal that the Plaintiff was referred by her Solicitor to Mr Aidan Walsh, Consultant Orthopaedic Surgeon at Our Lady of Lourdes’ Hospital in Navan and the Court of Appeal deduced that the Plaintiff saw Mr Walsh for Medicolegal purposes only and in fact Mr Walsh had given the Plaintiff no treatment at all and notwithstanding that fact, it was Mr Walsh’s report that were the only reports available to the Court in relation to the Plaintiff’s condition and prognosis into the future.
Take home points
- Given the Ruling of Judge Noonan and various pervious Rulings from the Court of Appeal from the likes of Judge Irvine, it would occur to me that the Appellate Court in relation to whiplash type injuries are in many instances reducing awards by a minimum of 35%.
- Paragraph 21 of the Judgment as outlined above addresses the public concern in relation to perceived excessive awards and there is an acknowledgement now by senior members of the Judiciary that this is having a direct affect on society and that going forward, various factors such as fairness and proportionality and the direct affect on society will be taken into consideration.
- I feel in this Judgment there was also subtle criticism of the Plaintiff in circumstances where she was seen by a Consultant Orthopaedic Surgeon within 3 weeks, to whom she was referred by her Solicitor and her sole purpose of her numerous visits to this Consultant Physician was for medicolegal purposes only. Her treating GP did not provide a Report to the Court.
- The Court of Appeal references on numerous occasions in this instance the Book of Quantum as being an essential yard stick in cases where injuries are reasonably defined in terms of categorisation, severity and duration, and in such instances, the Court of Appeal clearly favours the hearing of submissions from both Plaintiff and Defendant about how the Book of Quantum should be applied or whether it should be applied at all in a particular case.
On the basis of what we have seen in this particular Judgment, one would deduce that the Book of Quantum or the Judicial Guidelines which are to be introduced in accordance of the Judicial Counsel Act 2019, will play a much bigger role in personal injury litigation in this Jurisdiction going forward which undoubtedly would promote consistency in the level of damages awarded to Plaintiffs.
It occurs to me that this Judgment of the Court of Appeal encapsulates very concisely and accurately the anomalies that exist in Personal Injuries Litigation in this Jurisdiction.
It overtly addresses the public concern in relation to the adverse effect that excessive awards for general damages can have on insurance premia. It goes as far as to consider the potential harm that this is doing to society but then provides a solution and a pathway to more transparent and consistent awards, by way of reference to a Book of Quantum or Judicial Guidelines to be more closely followed by members of the Judiciary into the future.
Levels of awards are now being pressurised downwards, this is without any introduction of reforms, but simply in my view due to public will and discontent which has now clearly filtered into the conscience and awareness of the Judiciary as referenced in the present case.
This Judgment will be welcomed by Defendants and viewed by Plaintiffs with some trepidation.
