Many personal injury awards being reduced or dismissed

Decisions in the Court of Appeal over recent years that have significantly reduced, or dismissed, personal injuries awards made in the High Court, are reducing the size of awards generally.

The judgments have the effect of recalibrating downwards the level of awards being granted, according to recent rulings in the High Court.

This in turn is influencing the size of settlements between claimants and insurance companies in cases that don’t go all the way to court, according to legal and industry observers.

The Government is hoping that this development will help alleviate the insurance crisis that is putting so much pressure on businesses, family budgets and the financing of public events.

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The size of awards for cases taken at Circuit Court level, such as the now withdrawn “swing” case taken by Fine Gael TD Maria Bailey, may need to be addressed separately, some observers have said. The Circuit Court deals with awards up to a limit of €60,000.

‘Binding principles’

However, in a ruling in November 2018, Mr Justice Michael Twomey, in deciding that Garda Niall Kampff should get €5,000 under the Garda Compensation Scheme for bruising to his hand, rather than the €21,700 he sought, said that the District and Circuit courts, as well as the High Court, were obliged to follow the “binding principles” set out by the higher appellate courts.

The judge cited some of the Court of Appeal rulings listed below before deciding not to award the amount sought for the bruised hand, despite the higher figure being expressly provided for by the book of quantum. This was published in 2016 and is used by judges for guidance as to the appropriate awards to be granted for different types of injuries.

Most of the key rulings at the Court of Appeal level were made by Ms Justice Mary Irvine, who has since been appointed to the Supreme Court.

As well as these key rulings, the cases listed below also address the responsibility of businesses for accidents that occur on their property, which is the issue at the centre of the Bailey controversy.

Court of Appeal rulings are made by three judges, one of whom writes the actual judgment. Usually the party that wins the appeal has its legal costs paid by the other side.

Margaret Payne v John Nugent
On December 2012, Margaret Payne was a back-seat passenger in a car that was rear-ended by John Nugent's vehicle on Sundrive Road, Dublin. Payne suffered injuries to the back, neck and shoulder.

In the High Court in January 2015, Mr Justice Kevin Cross awarded her damages of €67,985. The decision was appealed.

Irvine, in her Court of Appeal ruling in November 2015, noted that Payne’s injuries to her neck and shoulder appeared to have healed within a year. In relation to her back, her GP prescribed painkillers and anti-inflammatories. Payne had used heat pads, attended physiotherapy sessions, and did home exercises. She stopped getting treatment in March 2014.

Irvine said that “the most catastrophically injured members of society who suffer great pain and distress” and who may never work again or who may remain dependant on the care of others for the rest of their lifetime, are awarded general damages for pain and suffering of approximately €400,000.

“Modest injuries should attract moderate damages,” she said. Seen in this way, the High Court award was “unduly generous”, and she reduced it to €37,985. Her two colleagues, president Sean Ryan and Mr Justice Michael Peart, agreed. The judgment is now considered a benchmark in terms of personal injuries awards.

Mary Nolan v Rafel Wirenski
Mary Nolan was a passenger in the car her husband was driving in September 2010 when it was rear-ended by Rafel Wirenski's vehicle on the N7, near Naas, Co Kildare. Nolan suffering injuries to her shoulder, right hand and thumb.

In a decision of the High Court in 2014, Mr Justice Anthony Barr awarded Nolan a total of €125,680. The judge accepted evidence that Nolan was unable to lift her arm above shoulder level.

In the Court of Appeal, Irvine, supported by Ryan and Peart, noted that although Nolan had demonstrated during the trial that she could not raise her right hand above the horizontal, Wirenski’s side showed video (obtained by way of a private investigator) of her during a summer trip to the beach “waving enthusiastically” with her arm over her head.

Irvine said the High Court was wrong to find Nolan could not lift her arm above the horizontal, given what could be seen in the video. This and another error served to reduce the award, but she also found that the award in general was “disproportionately large”.

Personal injuries go from a minor sprain to injuries that might “deprive a plaintiff from birth of most if not all of life’s joys, while leaving them acutely aware of their predicament”, she said.

Minor injuries should attract modest damages, middling injuries, moderate damages, and more severe injuries damages that are clearly distinguishable from those made for lesser injuries.

She replaced the original award with one for €65,000.

Anthony and Rita Shannon v Debbie O'Sullivan
In November 2012, the Shannons were driving along Anglesea Road in Clonmel, Co Tipperary, when Debbie O'Sullivan's car emerged from a road on their left and struck their passenger door with such force that the airbag was deployed.

In the High Court in March 2015, Ms Justice Aileen Donnelly awarded Rita Shannon damages of €131,436, and her husband Anthony €91,463, mostly for pain and suffering in the neck and shoulder.

The award was appealed and Irvine delivered a judgment in March 2016. Neither party missed work because of their injuries, Irvine noted. “Mr Shannon stated that there was nothing that he could not do. He was able to garden, put out the bins and go to work. His only complaint was that he had some difficulty casting, while out fishing. Ms Shannon confirmed that she was able to mind her grandchildren and go to the gym.” The Shannons injuries “must be viewed as modest indeed”.

Anthony Shannon’s award was reduced to €40,000, and his wife’s to €65,000. The ruling was supported Peart and Mr Justice Gerard Hogan.

Geraldine Martin v Dunnes Stores (Dundalk)
On August 10th, 2011, Geraldine Martin left her position at a Dunne Stores checkout to get a replacement 10kg bag of potatoes for a customer. While trying to dislodge a bag from a pallet, she suffered a partial tear of her right bicep. She sued and in May 2014 was awarded €67,450 by Mr Justice Iarfhlaith O'Neill in the High Court.

Dunnes Stores (Dundalk) appealed not just the size of the award, but also the issue of liability.

In the Court of Appeal in March 2016, Irvine, supported by Ryan and Hogan, granted the appeal. Martin’s injuries could not be attributed to any breach of duty or care on the part of Dunnes. Based on the training Martin had received from her employer, she should have decided that trying to lift the bag was unsafe.

Elizabeth Lavin v Dublin Airport Authority
This case involved the duty of care the occupier of a premises has towards a visitor. In April 2015, Mr Justice Michael Hanna awarded €40,000 to Elizabeth Lavin who, in November 2011, received a "nasty injury" when she lost her balance and fell on an escalator in Terminal 2 of Dublin Airport.

CCTV footage showed Lavin was not holding on to the handrail. It was her first time on an escalator. In the High Court, Hanna said she was one-third at fault for what happened to her. However, the airport was also at fault because of inadequate signage pointing out that there were lifts available.

In the Court of Appeal, in October 2016, Peart decided that the airport was not responsible at all for what had happened to Lavin.

The escalator was a danger in the ordinary sense that “if the user herself does not take some reasonable care about its use she may fall and sustain an injury.” The same could be said about a fixed staircase, he said.

“ Provided that reasonable care has been taken by the occupier, no liability will exist.” Hogan and White agreed. The claim was dismissed, and the award overturned.

Saundra O'Flynn v Cherry Hill Inns Ltd (The Oliver Plunkett Bar)
On February 17th, 2012, Saundra O'Flynn was in the Oliver Plunkett Bar in Cork with two friends. At one stage, while passing through a set of automatic doors, her ring finger got caught as the doors closed, and the fingertip was crushed and severed.

In January 2016, O’Flynn was awarded €75,000 in the High Court. Mr Justice Colm Mac Eochaidh decided the bar, in setting the closing speed for the door at other than the slowest possible speed, had failed in its duty to protect customers from foreseeable injury

In the Court of Appeal in July 2017, Irvine did not agree. She considered it important, in the context of cases of this nature, “to state that I could not disagree more with [the trial judge’s] conclusion” that a patron such as O’Flynn was not to be faulted in any respect.

“Adult members of society are obliged to take care for the own safety and cannot divest themselves of responsibility for their actions.”

The High Court award was set aside. Irvine’s colleagues Ms Justice Máire Whelan and Ms Justice Leonie Reynolds agreed.

Paul Gore (a minor) v John Walsh and Darren Walsh
Paul was four years old when, in 2011, he fell in the rented house where he and his mother were living, in Cabra, Dublin. The house belonged to landlords John Walsh and his son, Darren. Paul fell on to the uncovered spindle/valve of a radiator and was left with a two-inch scar on his back which the High Court was told would fade over time. Mr Justice Cross decided on damages of €50,000.

In her judgment in the Court of Appeal in October 2017, Irvine decided the award was excessive, and reduced it to €25,000.

“If modest lacerations such as that sustained by Paul are to attract awards of €50,000 it is difficult to see how the court would be in a position to make a proportionate and fair award in respect of, for example, substantial third-degree burns to a large area of the body including the face which would not require an award of damages far beyond the level of damages commonly reserved for those who sustain the most extreme type of catastrophic injury such as severe brain damage or quadriplegia.”

Her colleagues Ryan and Whelan agreed.

Louse Byrne v Ardenheath Co Ltd
On December 20th, 2012, Louise Byrne slipped on a drizzly, damp day when walking down a grassy bank at the defendant's car park in Mountview Shipping Centre, Blanchardstown. She broke her ankle.

In a High Court ruling in February 2016, Hanna awarded Byrne damages of €75,040, having discounted a higher figure by 40 per cent to take account of Byrne’s contributory negligence.

In the Court of Appeal in November 2017, Irvine overturned the High Court award.

If people want to take a short cut down a slope, they are entitled to, she said, but “if they are injured as a result they cannot seek to blame the occupier”.

The judge also made a general point about the interpretation of the 1995 Occupiers Liability Act.

Judges should be careful when interpreting such statutory provisions “to ensure that they do not inadvertently and contrary to the intention of the legislature by their judgments end up denying children the joy of running down a grassy slope in a public park on a dry summer day, or the golfer the pleasure of playing to an elevated green surrounded by a grassy bank”.

Irvine was supported in her view by her colleagues Ryan and Whelan.