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Changing landscape in personal injury awards

By: Daniel McLoughlin | Posted on: 18 Aug 2020

A recent Judgment in McKeown v. Crosby [2020] IECA 242  by the Court of Appeal examined the method of calculating and awarding damages in personal injuries cases, with a specific focus on the application of the Book of Quantum by both Judges and practitioners.

Damages

A sum of €76,000 was awarded to the plaintiff by the High Court in December 2019 for damages arising out of a road traffic accident.  The award was appealed to the Court of Appeal by the Defendant.    

The Court of Appeal in significantly lowered the award to €41,000 and in doing so provided interesting commentary on how personal injuries awards are calculated.     

Mr Justice Seamus Noonan, with whom Ms Justice Ann Power and Ms Justice Máire Whelan agreed, stated that awards have created “widespread public discourse, debate and dispute”.  He noted that society as a whole is affected by such awards, whether through insurance premia in the case of private defendants or taxes in the case of public defendants.  

While Judge Noonan acknowledged that the assessment of damages is “not amenable to scientific analysis”, he observed that consistency and predictability in awards of damages are fundamental to a fair system of compensation. The Court criticised the unpredictability of personal injuries awards, noting the inherent unfairness to parties where the value of their case depends on the identity of the trial judge, where some judges are regarded as more generous in their awards.

The Book of Quantum

The Court examined the use of the Book of Quantum, established in 2004 and noted the limited impact it has on the level of awards despite the fact that Courts are mandated to have regard to it by s. 22 of the Civil Liability and Courts Act, 2004.  He pointed to judicial criticism of the Book of Quantum; that is not suited to complex cases and that it is limited in that it cannot take account of how a particular injury affects a particular plaintiff.

Judge Noonan acknowledged that a court has no objective way of knowing what pain a plaintiff feels and that “regrettably, exaggeration is not uncommon”.

Noting that the Book of Quantum seeks to introduce a measure of predictability where an injury is capable of categorisation Noonan J commented that the particular soft tissue injury suffered by the Plaintiff is a clear case where the Book of Quantum has a role to play.

Interestingly Judge Noonan stated that practitioners should be given an opportunity to address the trial judge on whether the Book should be applied at all or how it should be applied.  

He further commented that it is important for trial judges to explain how their reasoning behind decisions made; whether it is how the figures for damages are arrived at or that the Book has no role to play in a particular case. Without this reasoning the court is left in the dark about the approach taken by a trial judge.

Conclusion

In determining the new award of damages the Court relied solely on the Book of Quantum, highlighting its significant role to play in person injury litigation. It signals a shift in attitude, where transparency and predictability in the calculation of damages are becoming increasingly important and serves as a reminder to practitioners not to ignore the previously marginalised Book of Quantum.

 If you would like further information, please contact Daniel McLoughlin, Partner on 01-8745929 for further information.

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