By Damian McGeady.
The Case of O’Daly
On the 8th June 2016, Mr O’Daly was cycling on the quay, near Dublin’s Custom House, when a passing bus caused him to fall, fracturing the bank official’s elbow and spraining his ankle. Several years on, and after a contested action where liability was disputed, a High Court Judge awarded him €100,000 General Damages for pain and suffering. Last week, the Court of Appeal reduced that award for General Damages to €55,000.
At the time of the incident in June 2016, the Court of Appeal was cutting its teeth, having been constituted in late 2014. In Payne v Nugent in November 2015, Irvine J. delivered a judgement which reduced an award by Mr Justice Cross. The Court decreed that awards must be reasonable having regard to the injuries sustained, that they must also be proportionate to the awards commonly made to victims in respect of injuries which are of significantly greater or lesser import. That modest injuries should attract moderate damages. A few months before Mr O’Daly’s brush with a bus, the Court of Appeal in Nolan v Wirenski addressed the jurisdiction of an appellate court to overturn an award of damages, reducing an assessment of damages by Barr J. from €100,000 to €65,000.
Weeks later, Mr & Mrs Shannon had their damages awarded by Donnelly J. in the High Court, substantially reduced by the Court of Appeal. In a separate Judgement on Costs in the action, the Court of Appeal refused to accept the submission by Counsel on behalf of the Appellants that the recent Court of Appeal decisions amounted to a recalibration of assessment of General Damages.
Along the Quays
Two weeks on from Mr O’Daly’s accident and just along the Quays at the Four Courts, a Miss Cronin, who had previously been awarded €180,000 damages for injuries by Cross J., was being told that her award for injuries sustained as a taxi passenger in an accident at Harold’s Cross, was being reduced by €75,000.
Murphy’s Just Award
Sandwiched between the two decisions, and proving that recalibration had not occurred, was the decision in Murphy v County Galway Motor Club. Mr Murphy, a spectator at a rally event where a car left the road and struck him, suffered dreadful injuries. The Court raised the assessment of McGovern J. on General Damages from €200,000 to €275,000. It also set aside a finding of contributory negligence. Whilst the decision in Murphy favoured the injured party and justly raised the award, there is a definite sense that the Appellate Court had a calming effect on Damages since its formation. Up until then it was often very difficult to predict levels of awards in the High Court. Advice to insurers would often be couched with the proviso, that much depended on the identity of the Judge hearing the case.
Discourse, debate and dispute
More recently, in McKeown v Crosby, the Court of Appeal reduced an award from €70,000 to €35,000. In doing so it referenced the public discourse, debate and dispute relating to the personal injury damages. In Griffin v Hoare, General Damages were reduced by the majority of the Court from €155,000 to €120,000. In Quinn v Masivlaniec, the Court reduced damages for pain and suffering from €210,000 to €175,000. In Leidig v O’Neill, General Damages were reduced from €155,000 to €90,000.
The Court, on occasion, has refused to interfere with the High Court’s assessment of Damages in Zhang v Farrell, and O’Sullivan v Brozda.
Just days ago, the High Court reduced an award for psychiatric damage in the case of Zagananczyk.
Next year there will be ten candles on the Court of Appeal cake. It’s formation and the approach that it has adopted to the assessment of General Damages for personal injuries is by now well-rehearsed. Reasonableness and proportionality are key to it’s approach. That is to be welcomed in a landscape where up to it’s formation, awards were much more volatile and unpredictable. Volatility and unpredictability are unwelcome in the Insurance world. The Court of Appeal is working.