Personal Injuries Update : Emma McKeown v Alan Crosby & Mary Vocella

PERSONAL INJURIES AWARD UPDATE:

EMMA MCKEOWN v ALAN CROSBY AND MARY VOCELLA

JUDGMENT of Mr. Justice Noonan delivered on the 11th day of August, 2020

The Facts:

The road traffic accident giving rise to these proceedings occurred in March 2017. The impact resulted in approximately €3,000 worth of damage to the Plaintiff’s vehicle. Liability was not in issue.  The Plaintiff suffered whiplash type injuries from which she recovered within a relatively short period, however her lower lumbar issues continued up to the date of trial.

The plaintiff told the Court that her GP prescribed appropriate medication and advised her to carry out exercises. However, her GP did not provide any medical reports nor were any records of the plaintiff’s attendances with him produced. Instead, the plaintiff relied upon five medical reports from a Consultant Orthopaedic Surgeon. The plaintiff consulted her solicitors very shortly after the accident as they arranged an appointment for her with the Orthopaedic Surgeon, three weeks after the accident. None of those reports gave details of any treatment to the plaintiff and it was assumed that the plaintiff saw him for medico-legal purposes only.

An MRI scan was arranged which showed low grade degenerative changes. Her Orthopaedic Surgeon said that these changes most likely pre-dated the accident in asymptomatic form but there may have been an element of exacerbation contributing to her lower lumbar symptoms. He felt the symptoms were likely to improve significantly over a one to two-year period from the accident with a focused rehabilitation programme and analgesia when required.

The High Court Award:

This was a relatively simple and straightforward personal injuries claim. The special damages and all the medical reports are agreed. The only witness to give evidence was the Plaintiff, who was found by the trial judge to be an honest and credible witness who did not exaggerate her injuries. The Plaintiff, was awarded at Dundalk High Court the total sum of €76,000 comprising of €65,000 in general damages, €5,000 damages into the future, and agreed special damages of €6,000.

The Defendants in the case appealed the quantum of the award on the basis that it was excessive.

The Appeal:

In considering the Appeal, Noonan J. noted the following:

  • Damages are, in theory at least, restitutional, meaning that they are intended to put the plaintiff back into the position he or she was in before the event complained of.   An award of monetary compensation is the only mechanism available to the court by which it can attempt to redress the wrong suffered by the injured plaintiff. It cannot be restitutional in the true sense.
  • The extent to which awards by courts influence the cost of insurance is a matter of widespread public discourse, debate and dispute. It is clear that awards made by the courts have an impact on society as a whole and the courts are mindful of that fact.
  • The Book of Quantum is most suited to relatively straightforward cases where the injury falls more clearly into one or more of the defined categories. In complex cases with multiple injuries, it may be of little or no assistance and there are many injuries it does not capture at all, for example scarring and psychiatric/psychological injury.
  • In the field of personal injuries litigation, it was always a fact of life for practitioners that some judges were viewed as more generous or parsimonious in their awards than others. Frequently, the identity of the trial judge would not be known until moments before the case actually commenced, resulting in varying outcomes depending on the “draw”. It is clear that this has the potential for injustice. It cannot be fair to either plaintiff or defendant that the value of their case depends on the identity of the trial judge. Personal injury litigation should not be a lottery and plaintiffs and defendants alike are entitled to reasonable consistency and predictability.

Judgment:

Giving Judgment electronically on the 11th August 2020, Noonan J. stated as follows:

Because the injuries in the present case are reasonably defined in terms of categorisation, severity and duration, that this was a case in which the Book of Quantum had a clear role to play.

Although there was an argument for suggesting that the plaintiff’s back injury fell into the minor category or at best, between minor and moderate, in deference to the findings of the trial judge that she suffered a significant loss of amenity as a result of having to change jobs, he classified the injury as within the moderate category. The moderate category is from €21,400 to €34,000. As regards her neck and shoulder injury, these fell into the lowest category of minor-substantially recovered where the suggested maximum is €14,800. As the Book of Quantum itself recognises, where the injuries fall into more than one category, it is not appropriate to simply add up the totals but rather carry out an adjustment to the overall award to fairly reflect the effect of all the injuries on the plaintiff.

Taking into account all the relevant factors Noonan J was satisfied that by any reasonable measure the High Court award could not be viewed as proportionate. It was not proportionate when viewed against the measure of the maximum for the most serious injuries. Neither was it proportionate in relation to other comparable awards and in that respect, the most directly comparable award was that in Payne v Nugent.   Finally it bore no relation to the range identified in the Book of Quantum.

Conclusion:

With regard to the plaintiff’s low back injury, the sum of €25,000 was awarded for pain and suffering to date and a further allowance of €5,000 to take account of her neck and shoulder injuries so that general damages amounted to €30,000.

With regard to pain and suffering into the future, that the evidence taken as a whole suggested that any level of future pain and suffering would be of a very minor order indeed and therefore the trial judge reached the correct conclusion in awarding a sum of €5,000 in that regard.

Finally the agreed special damages of €6,000 were added, which resulted in a total award of €41,000.

The reduction was based on the Book of Quantum alone as the Appellate Judge had only a short transcript and an ex-tempore Judgment from the originating matter to refer to.

This Judgment will be viewed by Plaintiffs with some apprehension however welcomed by Defendants.

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