Court of Appeal provides guidance on proportionality in the assessment of general damages

Background

The recent judgment of the Court of Appeal delivered on the 8^th of September 2022 in Kevin Meehan v Shawcove Ltd and Ors[1] provides helpful guidance on how the courts must approach an assessment of general damages in cases involving multiple injuries, as well as on how the courts must consider the proportionality of an assessment of general damages in light of the maximum award permitted.

This was an appeal against the manner in which the High Court had assessed the level of general damages and loss of opportunity in its judgment last year. Hanna J awarded the Plaintiff €375,000, comprising €125,000 for pain and suffering to date, €175,000 for pain and suffering into the future and €75,000 for loss of opportunity.

The Court of Appeal Decision

In his judgment, Noonan J, with Faherty and Binchy JJ agreeing, made it quite clear that he had the utmost respect for Mr Meehan’s drive and perseverance in spearheading his impressive recovery from what were very serious injuries and in returning remarkably soon to his successful career. He had suffered fractures to his back and legs, various soft tissue and dental injuries, as well as PTSD and depression after a lift he was in collapsed. He had ongoing knee pain and would eventually require surgery – including the possibility of a total knee replacement before the age of 50.

Ultimately, the Court of Appeal held that the sum of €125,000 for pain and suffering to date was appropriate. However, general damages into the future were adjusted downwards from €175,000 to €75,000, while damages for loss of opportunity were adjusted downwards from €75,000 to €50,000. Therefore, the total award for General Damages was adjusted downwards from €300,000 to a total of €200,000, which was deemed proportionate having regard to the maximum award permitted and to other awards in cases with injuries of comparable seriousness.

Noonan J stated that an award of €300,000 was normally reserved for cases involving serious and permanent disability of such severity as to compromise one’s ability to carry out the normal activities of daily living to a significant degree. He added that damages of this level have also been awarded where no major physical disability was suffered, but where there had been serious or sustained sexual abuse, or where life expectancy was adversely affected. This Plaintiff had recovered to the extent of leading a normal and rewarding life, albeit with some limitations, so that an award of €300,000 for General Damages was deemed not to be proportionate in the circumstances.

Proportionality

The Court of Appeal made clear that any award must be proportionate to the maximum award in the most serious cases; that is €500,000, and it must also be proportionate in the context of other awards. Noonan J noted how adopting the ‘cap’ approach makes applying the doctrine of proportionality difficult. He referred to the Supreme Court decision of Clarke CJ in Morrissey v HSE[2] who concluded that the proper approach to the limit of damages for pain and suffering is to see the limit as the appropriate award for the most serious damages. Therefore, all less serious damages should be determined by reference to it on a proportionate basis. In Morrissey, Clarke J also held that injuries of a very different nature may be comparable in seriousness. Thus, a cap of €500,000 for the most serious injuries was established, though the type of injuries leading to such an award were not set in stone.

Navigating the proportionality of an award becomes even more complex where multiple injuries are involved. Noonan J referred to the Personal Injuries Guidelines which state that the correct approach is to identify the most significant injury and then to adjust the value to ensure there is fair and just compensation for the lesser injuries; all the while ensuring proportionality in the overall award. As noted already, the maximum award permitted and the relativity of awards to other plaintiffs must also be borne in mind in this proportionality equation. This, it seemed, is what the trial judge had been attempting in arriving at a global figure and Noonan J saw nothing wrong with that approach in principle. However, the global figure of €300,000 for General Damages amounted to 60% of the maximum. Given the Plaintiff’s unusually impressive recovery, this was deemed inappropriate and €200,000 was deemed to be the appropriate figure.

Relationship with Special Damages

Another aspect of the general damages assessment on which the court provided guidance is the interplay, or lack thereof, between general and special damages. Reference was made to the decision of O’Higgins CJ in Sinnott v Quinnsworth[3] which held that general damages are about compensation, and therefore, involve separate considerations and should not be reduced due to a high award of special damages.

Conclusion

Although Mr Meehan had suffered very serious injuries, he had made a remarkable recovery due to what the Court of Appeal stated was his own motivation and drive. In light of this, the Court was of the opinion that €300,000 was not an appropriate or a proportionate award for general damages. That level of general damages should be reserved for the most serious and permanent injuries which compromise activities of daily living to a significant degree. A downward adjustment from €300,000 to €200,000 was made based on proportionality to the maximum award, proportionality to other plaintiffs, and a formula to be employed where multiple injuries are involved; that is to identify the most serious injury and adjust the value to ensure fair and just compensation for the lesser injuries.

[1] [2022] IECA 208.

[2] [2020] IESC 6.

[3] [1984] WJSC-SC 1719.