Awards for Whiplash Injuries in Ireland 4.4 Times Higher Than England and Wales-New Report

whiplash claims ireland

It is often claimed that the level of awards in personal injuries claims in Ireland is laughable and out of step with the rest of the developed world. A ‘compo culture’ is a phrase that is regularly thrown around but is there any truth in this?

A new report form the Personal Injuries Assessment Board (PIAB) which gives the data for the first six months of 2018 certainly supports this view. It tells us that the level of award in Ireland is 4.4 times that of awards for similar injuries in England and Wales.

For the first 6 months of 2018 the average award in Ireland for a whiplash type injury for the driver of a car in a car accident was €20,800 which breaks down to a figure of €19,066 for the injury itself-that is, general damages-and €1,734 for special damages-that is, out of pocket expenses.

Interestingly female victims were awarded a little more than males.

A whiplash type injury is one that involves soft tissue injuries to the neck, upper back, shoulders, and strains/sprains of the spine.

The figure for non-whiplash injuries for the first 6 months was €27,386; this would include more serious injuries than whiplash-for example, fractures, sprains, and so forth.

The report from PIAB also shows that 70% of claims in car accident claims for the same period were whiplash related.

It is hard to understand why Irish victims of these types of injuries enjoy one of the highest rates of compensation in Europe and 4.4 times that of England and Wales.

A former President of the High Court, however, has warned that the system in Ireland is open to abuse because the chances of a fraudulent claimant being prosecuted for making a false or exaggerated claim was “virtually zero”.

Meanwhile, we are all financing this system with higher insurance premiums virtually every year we renew our motor insurance policy.

Learn more about personal injury claims in Ireland, how awards are assessed, court proceedings, what are general damages, special damages, how does the Injuries Board work, and more.

Personal Injury Awards Reduced by Court of Appeal-How Are General Damages to Be Quantified?

personal injury claims awards ireland

How do you value an injury you have suffered?

Can a person who has lost a limb such as an arm or leg or been rendered quadriplegic be truly put in the position they enjoyed before the accident by an award of damages?

Nevertheless, This is the task of the Courts in personal injury cases and the avowed goal is to put the person who has suffered the injury in the same position they would have been in if the injury had not occurred. Most people would say that this is not possible.

Nevertheless, this is what happens at the end of a successful personal injuries claim.

The amount or quantum of damages is a controversial topic with many members of the general public and the insurance industry saying the awards are far too high whilst victims and their families have a diametrically opposed view.

In 2016, in a Court of Appeal Case called Shannon -v- O’ Sullivan [2016] IECA 93 the Court of Appeal gave some much needed guidance as to how the amount of these awards should be arrived at.

The facts in Shannon v O’Sullivan

The defendant in this case appealed against what she saw as excessive awards to Mr. and Mrs. O’Sullivan arising out of a road traffic accident in November, 2012. The High Court in Kilkenny had awarded Mrs. Shannon €50,000 in respect of pain and suffering to date, €80,000 in respect of pain and suffering into the future and agreed special damages of €1,463, a total of €131,463.

Mr. Shannon had been awarded €91,463, made up as to €35,000 in respect of pain and suffering to date, €55,000 in respect of pain and suffering into the future and an agreed sum of €1,463 in respect of special damages.

In the original HIgh Court case the defence robustly challenged the extent of the Shannons’ injuries and their credibility. They did so because they claimed the Shannons did not seek medical attention for some weeks after the collision, they had not gone to their GP but had gone to a retired doctor, had been referred to a consultant psychiatrist in May, 2014 and were only then diagnosed with psychological injuries.

The High Court trial Judge, however, found them to be credible, hard working witnesses and accepted the medical evidence on their behalf. It was on this basis that the awards were arrived at.

The appellant’s case in the Court of Appeal was that the Shannons required little or no medical intervention and the awards of the High Court to both of them were excessive. The injuries were not of such a nature as to deprive either of the Shannons of any quality of life and they continued working at all times after the accident and should not attract awards which would be more appropriate to severe injuries.

The principles to be applied

Firstly, the Court of Appeal accepted that it had not heard the evidence in the High Court and therefore the court of Appeal was bound by the findings of fact in the High court case. The Court of Appeal could only overturn the award of damages if it was unreasonable and disproportionate, or as the Court of Appeal put it: that no reasonable proportion exists between the sums awarded and that which the appellate court itself considers appropriate in respect of the plaintiffs’ injuries.

This issue had been considered in the following two cases:

  1. Foley .v. Thermal Cement Products Ltd (1954) 90 I.L.T.R. 92
  2. Rossiter v. Dun Laoire Rathdown County Council [2001] 3 I.R. 578

The test is whether there is a reasonable proportion between the sum (awarded and the appeal court’s assessment) or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable. However, the Court of Appeal should only interfere with the award if there is a discrepancy of at least 25 % between the amount awarded by the lower court and the Court of Appeal’s view.

In other words, a moderate adjustment will not be made by the Court of Appeal.

Measuring damages

The Court of Appeal noted that the quantification of damages had 3 widely accepted features-it must be:

  1. fair to the plaintiff and the defendant
  2. proportionate to social conditions, bearing in mind the common good, and
  3. proportionate within the scheme of awards made for other personal injuries

The Court of Appeal noted that the goal of damages in personal injury cases is to put the injured party in the position they would have been in if the injury had not occurred. However, the Court of Appeal also recognised that this is unattainable in many cases, especially those of serious injury.

The Court of Appeal held the approach to be taken was to firstly look at the injuries of the claimant and see where they lie on the general spectrum of personal injuries ranging from catastrophic at the top of the range to modest injuries at the bottom.

Catastrophic injuries damages have a limit of approximately €450,000 or thereabouts for general damages. Therefore the Court of Appeal in this case held that the approach to be taken was to start at this limit and work back down to see where on the spectrum the instant injuries lay.

The Court helpfully set out the questions which most judges will be guided by in assessing general damages as follows:

Most judges, when it comes to assessing the severity of any given injury and the appropriate sum to be awarded in respect of pain and suffering to date, will be guided by the answers to questions such as the following:-:

(i) Was the incident which caused the injury traumatic, and if so, how much distress did it cause?
(ii) Did the plaintiff require hospitalisation, and if so, for how long?

(iii) What did the plaintiff suffer in terms of pain and discomfort or lack of dignity during that period?

(iv) What type and number of surgical interventions or other treatments did they require during the period of hospitalisation?

(v) Did the plaintiff need to attend a rehabilitation facility at any stage, and if so, for how long?

(vi) While recovering in their home, was the plaintiff capable of independent living? Were they, for example, able to dress, toilet themselves and otherwise cater to all of their personal needs or were they dependent in all or some respects, and if so, for how long?

(vii) If the plaintiff was dependent, why was this so? Were they, for example, wheelchair-bound, on crutches or did they have their arm in a sling? In respect of what activities were they so dependent?

(viii) What limitations had been imposed on their activities such as leisure or sporting pursuits?

(ix) For how long was the plaintiff out of work?

(x) To what extent was their relationship with their family interfered with?

(xi) Finally, what was the nature and extent of any treatment, therapy or medication required?

In short, a Court must:

However, a judge must act rationally and take into account, in summary, the severity of the injury, how long it has taken the plaintiff to recover, whether it has short-term or long-term consequences and if so the impact on the plaintiff’s life in all its different aspects including his family, his work his sports or hobbies or pastimes, in addition to any other features that are relevant in the plaintiff’s particular circumstances.

Decision

The Court of Appeal disagreed with the High Court judge who found that the plaintiff’s injuries were ‘significant’. The Court looked at the pain and suffering, limitation of lifestyle, pain and suffering into the future, etc. and decided that the injuries were only ‘modest’ when looked at on the spectrum of injuries ranging from minor to catastrophic.

In Mr. Shannon’s case the award of general damages was reduced from €90,000 to €40,000 and Mrs. Shannon’s award was reduced from €130,000 to €65,000.

This decision of the Court of Appeal to reduce the general damages award by 50% or thereabouts is seen as part of a trend involving the Court of appeal reducing personal injury awards.

For example, in Payne v Nugent [2015] IECA 268 the Court of Appeal reduced the general damages award from €65,000 to €35,000 and in Nolan -v- Wirenski [2016] IECA 56 the general damages awarded by the High Court was reduced from €120,000 to €65,000.

It is worth noting that these reductions in this emerging trend, if it is a trend, only apply to general damages awards as special damages awards are to continue to be assessed separately.

If you click on any of the 3 links above you can read the full decision of the Court of Appeal in each case.

Personal Injuries Proceedings in the District Court

 

personal injuries district court

The relevant rules about bringing personal injuries proceedings in the District Court are contained in:

Venue

A personal injuries summons must be filed with and issued by the Clerk assigned to the Court area in which the respondent or one of the respondents ordinarily resides or carries on any profession, business or occupation.

Form and Content of Personal Injuries Summons

The form to use is Form No. 40A.01, Schedule C.

The summons must contain

  • The claimant’s name
  • PPS number
  • Respondent’s name
  • Full and detailed particulars of the claim and each allegation and the injuries caused by the wrongdoing of the respondent
  • Each instance of negligence of the respondent.

Personal Injuries Defence

A personal injuries appearance and defence must be delivered to the claimant or his solicitor within 28 days of being served with the PI Summons in form 40A.02. The Appearance must be filed with the District Court clerk.

Affidavit of Verification

An affidavit of verification, in the form 40A.04, must be sworn in respect of all pleadings.

Notice of Motions and Adjournment to Allow Mediation

Certain applications can be brought, for example to extend the time for serving of a pleading or judgement in default or for a pre-trial hearing, by Notice of Motion; the Court can also order an adjournment to facilitate mediation between the parties.

Setting Down for Trial

When an Appearance and Defence have been served and filed, the Claimant can serve notice of trial by using form 49.01, schedule C.

The Notice of Trial must be filed with the District Court clerk after service.

The party serving notice of trial must also file with the District Court clerk a set of copies of the pleadings, affidavits, and correspondence to be relied upon in the case.

Clicking the links above will bring you to the relevant Order (40A) and forms (schedule C).

2 Interesting (and Surprising) Personal Injury Cases

Two recent decisions in personal injury claims are worth a look at.

personal-injury-claim
Negligence is essential to win a personal injury claim

The decisions could probably be seen to be surprising to the lay person.

Because one involved a young man suffering a broken ankle at a concert, and losing his claim.

And the other involved a lady falling off the toilet in her own home.

And she won.

But the question of legal negligence is the key determinant of each decision.

Oxegen Festival, Punchestown

The first involved a concert-goer at the Oxegen festival at Punchestown racecourse. He broke his ankle when it got stuck in the mud and sued MCD, the concert promoters.

The Judge in this case noted that “some recklessly robust behaviour” on the part of one or more other concert-goers caused his injuries.

However she said

 “It is not just or fair for Mr Ponisi to now seek to render MCD liable for his injuries when they were not aware either of the intended actions of these individuals or the allegedly hazardous nature of the underfoot conditions” .

She added:

“Organisers of these events can only do what is reasonable in order to provide for the safety of those who attend.”

It is simply not possible to expect the promoters “to provide a site that will remain mud free for 80,000 people over a weekend against a backdrop of six weeks of bad weather,” she said.

Ruling MCD were not negligent, Ms Justice Irvine said she would have awarded €60,000 damages if Mr Ponisi had been successful in establishing negligence.

She was satisfied Oxegen 2007 was planned and managed in a manner which was reasonable in all of the circumstances for the purposes of seeking to protect the safety of festival-goers from injuries that might occur.

She did not believe MCD could be considered to have been negligent merely because there may have been some spot in the arena, where Mr Ponisi was, which had a few inches of mud.

The claimant will now have to pay his own and MCD’s High Court costs which will probably be eye watering given that the case took up 2 days of the High Court’s time.

The key decision to be made in this case was whether MCD was legally negligent, that is whether it took all reasonable steps to make sure the concert was as safe as possible. The onus on MCD was not to make the concert “bullet proof” in terms of accidents; taking reasonable measures for foreseeable risks was sufficient.

Lady Falls Off Her Own Toilet

The other case involved a lady who fell off the toilet in her own home. She got such a fright from a falling tile from her bathroom wall that she fell forward and injured her knee.

The background to the incident was that some weeks before she had engaged the services of a building contractor to have her bathroom re-tiled. The contractor employed a tiler to do the work.

However the lady sued the contractor for her injuries on the basis that she claimed he was negligent and had, among other things, failed to ensure that the work had been done properly.

The contractor believed the claim was a fraudulent one because he claimed she wanted different tiles to those used.

The claimant suffered ongoing pain in her knee as a result of falling forward off the toilet due to the fright of the falling tile.

She need physiotherapy and attended her GP many times. She had also suffered from an underlying degenerative condition in her knee.

Nevertheless the Judge accepted her version of events.

She awarded the claimant €25,000 for pain and suffering, €350 expenses, and €2,500 to replace all the tiles.

Conclusion

To win a personal injury claim, you must prove negligence by the alleged wrongdoer.

And negligence is a legal concept with a number of strands or “proofs” to it. (Learn more about negligence here).

Negligence-An Essential Element of a Successful Personal Injury Claim

negligence

If you have suffered a personal injury, the question of “negligence” is an important one. This piece will explain what negligence is.

Legal actions in Ireland, such as medical negligence or personal injuries actions, are pursued on the basis of negligence which is a tort (a civil wrong).

There are four elements to the tort of negligence:

  1. The wrongdoer had a duty of care to the person who suffered loss or damage-you don’t owe a duty of care to everyone. However, you do owe a duty to those who are proximate, and where the danger is reasonably forseeable;
  2. The defendant failed to conform to the required standard in his/her behaviour/conduct. The required standard is that of the ‘reasonable person’ and Courts will address the question: did the defendant act as a reasonable person would?
  3. Did the plaintiff/victim suffer actual loss or damage? And was the damage or loss forseeable? This is the general principle of “remoteness” of damage.
  4. Was there a sufficiently close connection between the conduct of the defendant and the loss suffered by the plaintiff? This is the idea of “causation”.

Each of these elements must be present to successfully sue for negligence. And each of them has been well canvassed in various Courts in common law jurisdictions around the world.

For example, if a Court decides that a person had indeed a duty of care to the person who suffered loss or damage, it will then turn to the question of the standard of care.

In assessing this aspect of a negligence claim, Courts will look to

  • The seriousness of the threatened injury
  • The likelihood of an  accident
  • The social usefulness of the conduct complained of
  • The cost of eliminating the risk.

The third element above-actual loss suffered-must be proven as negligence on its own is not actually actionable. The general principle of ‘remoteness’ of damage is important here; this means that the loss should have been reasonably foreseeable.

The fourth element above is concerned with a sufficiently close causal relationship between the conduct complained of and the resulting damage.

There are two further aspects of negligence claims which must be considered before bringing any legal proceedings:

1. Assumption of risk

The Civil Liability Act, 1961, section 34(1)(b):

this subsection shall not operate to defeat any defence arising under a contract or the defence that the plaintiff before the act complained of agreed to waive his legal rights in respect of it, whether or not for value; but, subject as aforesaid, the provisions of this subsection shall apply notwithstanding that the defendant might, apart from this subsection, have the defence of voluntary assumption of risk;

This means that if the defendant can show that the plaintiff agreed to waive his/her legal rights before the act complained of, the action will be dismissed.

2. Contributory Negligence

This arises where the ‘victim’ was in some way responsible for the loss/damage suffered. The plaintiff’s compensation, if the claim is successful, will be reduced in proportion to the amount in respect of his/her own fault.

If you have suffered as a result of the negligent conduct of another and want to be compensated you should consider contacting a solicitor.