What is the correct method of valuing psychiatric injury under the new Guidelines?
A blog by Damian McGeady
The Court of Appeal has given further guidance on the methods of valuing Psychiatric Injury under the new Guidelines. In the Zagananczyk case, the Court upheld the Appeal of the Defendant’s, reducing the High Court award of €90,000 damages for general damages to one of €60,000.
In the High Court, the Trial Judge accepted that the Plaintiff had suffered from PTSD in the lower end of the serious category, finding a figure of €45,000 to be appropriate. The Court accepted that the Plaintiff also suffered separately, an identified and diagnosed Psychological Injury in the form of an alcohol abuse disorder and depression, which the Court categorised as being at the lower end of moderate and for which the Court allowed €20,000 damages.
Thus the High Court’s award for Psychiatric Injury totalled €65,000. The High Court allowed an additional figure of €25,000 for burns and scarring.
The Defendants argued that the Trial Judge erred in classifying the PTSD as serious and that the Judge was wrong to separately award two different sums for Psychiatric Injury. In addition, the Defendants argued that the Judge’s award for scarring was excessive.
Applying the Guidelines
The Court of Appeal identified the decision of Coffey J. in Lipinski (a minor) v Whelan as helpful analysis, not just in valuing Psychiatric Injury, but in applying an uplift for lesser injuries. The Court also referred to and commended the decision of Murphy J. in McHugh v Ferol. In that action the Court, having established the value of the dominant injury went on to value each additional and lesser injury, totting the values up before applying a discount to the lesser injuries. In McHugh the discount was 50%.
In his Judgement in the Court of Appeal in Zagananczyk, Noonan J. said;
Whatever mathematical approach is adopted, it is important not to lose sight of the global impact of all the injuries on the particular plaintiff concerned. The plaintiff is entitled to be compensated for all the suffering they have endured, be it from one or ten discreet injuries suffered at the same time. As the Guidelines suggest, some assistance may be derived from a consideration of how the overall award compares with other individual categories in the Guidelines. If an obvious mismatch emerges, this may suggest that the requisite proportionality has not been achieved. That is, in my view a useful exercise in the present case as appears further below and can provide a helpful “reality check”.
The Assessment on Appeal
The Court of Appeal held that the High Court had made a number of errors in it’s approach to the assessment of damages for Psychiatric Injury. The Court noted that the Guidelines define PTSD as including mood disorder and that depression was a mood disorder. Applying the analysis of Coffey J in Lipinski, the Court of Appeal found that the Trial Judge had erred in reaching a classification that the Plaintiff’s PTSD was “serious”. It found that a cumulative award for Psychiatric Injury in the case of €65,000 clearly offended the doctrine of proportionality, reducing the award to €35,000, stating:
Although in my view the PTSD in Lipinski was of a more serious order than in the present case, nonetheless when one factors in the depression and alcohol abuse, even assuming they were to be regarded as separate, I think, as in Lipinski, an award of damages at the top end of the moderate category is justified at €35,000.
Whilst The Court found it unsatisfactory that the High Court Judge had not indicated how the uplift was applied to in the case of burns and scarring, the Court of Appeal did not consider that the Defendant had established an error on the part of The Judge in arriving at a figure of €25,000 for scarring.
The Court of Appeal reduced the award for general damages from €90,000 to €60,000.