Court cuts whiplash compensation, says injury awards should ‘not be a lottery’
Posted on 18th August 2020 at 19:11
Judge reduces €76,000 award to €41,000, says some judges viewed as ‘more generous or parsimonious’
The Court of Appeal has made a significant personal injuries ruling where it reduced the compensation given for soft tissue injuries suffered in a road traffic collision, and noted that personal injury awards should “not be a lottery”.
The court said in the field of personal injuries litigation, “some judges were viewed as more generous or parsimonious in their awards than others” and that this could be a source of injustice.
The ruling, by Mr Justice Seamus Noonan, supported by Ms Justice Máire Whelan and Mr Justice Ann Power, has been welcomed by the Alliance for Insurance Reform.
Mr Justice Noonan is a member of the Personal Injuries Guidelines Committee of the Judicial Council, which is due to present draft guidelines on personal injury awards to the council’s board at the end of October.
The guidelines will eventually replace the Book of Quantum, the latest edition of which dates from 2016. The book is designed to give guidance on the assessment of personal injury awards.
Produced by the Personal Injuries Assessment Board, the courts are obliged to have regard to the Book of Quantum but in fact it is seldom referred to by lawyers or judges in court cases, Mr Justice Noonan said.
He said that in the case being considered the trial judge had only made a “fleeting reference” to it.
“Unfortunately, the judgment of the trial judge gives little insight into how the amount awarded was arrived at,” he said.
“I am satisfied that by any reasonable measure it cannot be viewed as proportionate.”
He reduced the overall award of €76,000 made by the High Court to €41,000.
The ruling is likely to influence other awards of the lower, soft-tissue type, which constitute a huge proportion of the number of awards made annually, and to see increased regard being paid to the Book of Quantum.
Mr Justice Noonan said while there was reason to consider the soft-tissue back injuries suffered by the plaintiff to be in the minor catagory, as defined by the Book of Quantum, he would in deference to the findings of the judge who had heard the case at High Court level, place them in the minor to moderate category.
The case he ruled on last week involved injuries suffered by a home carer, Emma McKeown, who was 30 when the car she was driving on the Newry Road, Dundalk, was crashed into while being overtaken by the jeep of the defendants - Alan Crosby and Mary Vocella.
Liability was not an issue.
In the High Court Ms McKeown was awarded overall damages of€76,000 by Ms Justice Bronagh O’Hanlon, sitting in Dundalk, after a sitting that lasted approximately half an hour.
The defendants appealed the size of the award.
Ms McKeown said she suffered injuries to her shoulder, arm and back. She attended her GP on the evening of the accident and on a number of occasions afterwards, but no written evidence was produced to the court about this.
Medical reports were presented from Mr Alan Walsh, Orthopaedic Surgeon, from Our Lady’s Hospital, Navan.
“It seems clear that the plaintiff consulted her solicitors very shortly after the accident as they arranged an appointment for her with Mr Walsh on the 14th April, 2017, barely three weeks after the accident,” Mr Justice Noonan said.
“None of Mr Walsh’s reports give details of any treatment he afforded the plaintiff and it must, therefore, be assumed that the plaintiff saw Mr Walsh for medico-legal purposes only.”
Ms McKeown was off work for six weeks and suffered lower back pain and numbness affecting her left hand and fingers.
Mr Walsh felt the symptoms were likely to improve significantly over a one to two year period with a focused rehabilitation programme and analgesia when required, though there was a chance of low level symptoms persisting. Other symptoms in the neck and upper back resolved after a period of months.
Mr Justice Noonan noted that the assessment of damages is not amenable to scientific analysis and must take account of societal factors, be fair and reasonable, and have regard to general living standards in the country.
In the modern context, he said, societal factors “undoubtedly include the cost of liability insurance be it motor, public or employer’s liability.
“The cost of such insurance is for most ordinary people and businesses, a significant outgoing. The extent to which awards by courts influence that cost is, in recent times, a matter of widespread public discourse, debate and dispute.”
Ultimately each member of society must 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, he said. Society thus has a direct interest in the level of court awards.
Consistency of judgments was fundamental to the concept of fairness but the Book of Quantum, which had been available to the courts for years, “has had a surprisingly limited impact on the level of awards”. Judicial considerations of the book were “relatively sparse”.
While the value of the book may be limited for a variety of reasons, “it does at least recognise that there are different categories of severity of injury, each of which has an approximate band of values.”
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