Irish Court of Appeal calls for certainty, not lottery
21 August 2020
Personal injury awards should not be a lottery
In the case of Emma McKeown v. Alan Crosby and Mary Vocella [High Court Record Number: 2018/8764P, Neutral Citation Number:  IECA 242] Mr Justice Noonan, in his judgment delivered on 11th August 2020, allowed a personal injuries appeal and reduced an award for damages from €76,000 to €41,000 and in doing so, called for more certainty, and more regard to be shown to the Book of Quantum in personal injury cases.
On the 21st March 2017, Emma McKeown (“the Plaintiff”), was involved in a road traffic accident while driving on the Newry Road in Dundalk and was turning right into the entrance of a house when she was struck by an overtaking jeep, owned by Alan Crosby and Mary Vocella (“the Defendants”). It was described as “quite a significant impact” injuring the Plaintiff’s shoulder, arm and back and resulting in €3,000 worth of damage to her car. However, the impact did not activate the airbags and she attended her GP (Dr Whatley) that evening. She further attended a Consultant Orthopaedic Surgeon (Mr Alan Walsh) at Our Lady’s Hospital Navan, and with her GP on multiple occasions.
The High Court
The case was heard by the High Court (O’Hanlon J. presiding) at Dundalk on 11th December 2019 and the Plaintiff was awarded €76,000 in total, with €70,000 in general damages (comprising €65,000 to date, €5,000 for future losses with €6,000 in agreed special damages). The defendants appealed the award on the grounds that it was excessive, and the Plaintiff appealed the award of €5,000 (for future losses) on the grounds that it was too low.
The Plaintiff was off work for a total of six weeks and first attended with Mr Walsh three weeks after the accident. Her complaints concerned her (central) lower back, extending to her thoracic and cervical spine areas. The Plaintiff also complained of “a recurrence of shingles and an exacerbation of psoriasis” and was prescribed analgesia and anti-inflammatories. In addition to this, she also complained of symptoms of numbness affecting her left hand and fingers, with some reduction in the range of movement of her lumbar spine (but movement of the cervical spine was not affected).
An MRI scan was arranged and showed low grade degenerative changes. Once the Plaintiff returned to work, she was re-located to Cavan by her employer and subsequently found the commute journey (by car) a source of pain and discomfort. Eventually, she was made redundant. The Plaintiff commenced physiotherapy, pilates and dry needling sessions to help her manage her back symptoms / discomfort. Mr Walsh felt her symptoms should continue to improve over time but there was a possibility of low level symptoms persisting in the longer term.
The High Court Judge noted that the numbness affecting the Plaintiff’s left hand and fingers was significant, and stated that she had regard to the Book of Quantum. Ms Justice O’Hanlon assessed the Plaintiff’s damages as attracting €65,000 general damages to date and €5,000 general damages into the future. The Defendants, being of the view that the award was excessive, appealed it.
The Court of Appeal
In his judgment, Mr Justice Noonan noted that damages are ‘restitutional’ in nature and that their assessment “is not amenable to scientific analysis”. Such assessment must take into account the kind of societal factors referred to (by Chief Justice Tom O’Higgins) in Sinnott v Quinnsworth, such as the “general level of incomes and to the things upon which the plaintiff might reasonably be expected to spend money”.
He also referred to the judgment of Ms Justice Susan Denham in M.N. v S.M where she said that damages should be proportionate to social conditions and that there are three elements to be considered when assessing damages:
- Fairness to the Plaintiff;
- Fairness to the Defendant; and
- Proportionality to the general scheme of damages awarded by a Court.
Mr Justice Noonan highlighted that the Book of Quantum has been in place since 2004, but that it has had a limited impact on the level of awards (particularly when one considers the fact that the Courts are mandated to have regard to it by s.22 of the Civil Liability and Courts Act 2004). While the value of the book may be limited for a variety of reasons, he noted “it does at least recognise that there are different categories of severity of injury, each of which has an approximate band of values.”
He went on to state that the “successful operation of any personal injuries litigation system is highly dependent on predictability. The Book of Quantum seeks to introduce a measure of predictability, at least where it can be said that the injury in question is capable of categorisation and is one that has affected the plaintiff in a way that it might be expected to affect most people”.
In his judgment (at para. 27), Mr Justice Noonan notes that consistency in awarding damages is important, and that the new Personal Injuries Guidelines, which will replace the Book of Quantum, will have the objective of promoting consistency in this area of Irish Law. As the injuries in this case were reasonably defined in terms of categorisation, severity and duration, it was his considered view that this was a case where the Book of Quantum has “a clear role to play”.He continued (at para. 31 of his judgment);
“It seems to me therefore that in cases where the Book of Quantum is clearly relevant, it would assist the court’s considerations to hear submissions from the parties about how it should be applied, or perhaps whether it should be applied at all”
Mr Justice Noonan noted that “unfortunately, the judgment of the trial judge gives little insight into how the amount awarded was arrived at” adding that he was satisfied that by any reasonable measure the award cannot be viewed as proportionate, and nor does it bear any relation to the range of damages identified in the Book of Quantum, which he considered to be appropriate for this case.
In relation to the Plaintiff’s lower back injury, Mr Justice Noonan decided that that correct figure for pain and suffering to date was €25,000 (with a further €5,000 in respect of her neck and back, increasing the total amount for general damages to €30,000). He awarded €5,000 in respect of pain and suffering into the future, along with €6,000 for special damages (as had been agreed between the sides).
The Court therefore substituted an award of €41,000 for the award (of €76,000) previously granted by the High Court, and in doing so allowed the Defendant’s appeal, and dismissed the Plaintiff’s cross-appeal.
(Whelan J. and Power J. concurring)
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-  Mr Walsh commenting on these findings stated (at para. 6 of the judgment) that “these changes most likely pre-dated the accident in asymptomatic form but there may have been an element of exacerbation contributing to her lower lumbar symptoms associated with myofascial pain. He felt the symptoms were likely to improve significantly over a one to two year period from the accident with a focused rehabilitation programme and analgesia when required”.
-  With €6,000 in respect of agreed special damages.
-   ILRM 523.
-   4 IR 461.
-  “The 2004 edition, published during the height of the ‘Celtic Tiger’ years, was perceived as going out of date very quickly. Judicial comments have noted that it was not suited to complex cases – see for example Murphy v Galway Motor Club  IEHC 135 and Walsh v Tesco  IECA 64” – see page 12 of the judgment.
-  Para. 25, page 13 of the judgment.
-  With Section 3 of the Book of Quantum dealing specifically with back/spinal injuries within five categories: 1) minor – substantially recovered; 2) minor - a full recovery expected; 3) moderate; 4) moderately severe and finally; 5) severe and permanent.
-  See Page 15 of the judgment.
-  See para. 47 of the judgment at page 23.
-  Neither did Mr Justice Noonan consider it comparable to the award in Payne v. Nugent  IECA 268.