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.

The High Court Affidavit of Verification In Personal Injury and Defamation Actions

affidavit of verification

An affidavit of verification is required in the High Court to verify assertions or facts alleged in personal injury actions and defamation proceedings. It is to verify a pleading or replies to a request for further information and is required pursuant to section 14 of the Civil Liability and Courts Act, 2004 in personal injury actions, and pursuant to section 8 of Defamation Act, 2009.

A copy is served on the party who is being served with the pleading or replies to further information.

(4) An affidavit under this section shall be lodged in court not later than—

(a) 21 days after the service of the pleading concerned or such longer period as the court may direct or the parties may agree, or

(b) in the case of a requirement to which subsection (8)(b) applies, 7 days before the date fixed for the trial of the personal injuries action concerned. (Section 14 Civil Liability and Courts Act 2004).

The form it should take is as follows:

AFFIDAVIT OF VERIFICATION

O. 1A, r. 10

THE HIGH COURT

20…. No……
Between A.B., …………….. Plaintiff,

and C.D., …………. Defendant.

I, AB, ……………….. of …………………. , the (plaintiff, defendant or state other capacity or authority) in the above-entitled proceedings, aged eighteen years and upwards MAKE OATH and say as follows:

1. I beg to refer to the contents of the (personal injuries summons, defence, reply, further information etc. – as the case may be) delivered herein on behalf of the (plaintiff/ defendant) on the ….. day of ………….. 20 …. *[upon which this affidavit is endorsed] *[and upon a true copy of which marked “A” I have signed my name prior to the swearing hereof].

2. The assertions, allegations and information contained in the said (personal injuries summons, etc.) which are within my own knowledge are true. I honestly believe that the assertions, allegations and information contained in the said (personal injuries summons, etc.) which are not within my own knowledge are true.

3. I am aware that it is an offence to make a statement in this affidavit that is false or misleading in any material respect and that I know to be false or misleading.

SWORN etc

It is an offence to make a statement in an affidavit that is false or misleading and you can be fined up to €100,000 and/or imprisoned for up to 10 years, pursuant to section 29 of the Civil Liability and Courts Act, 2004.

5 Questions You Will Need to Answer in a Personal Injury Action

personal injury claim1

If you are thinking about bringing a personal injury action against someone who has caused you injury or damage you will have to be clear as a bell from the outset about a number of issues.

Let’s take a look at them.

  1. How the accident occurred

You will need to be able to explain in clear, plain language what actually happened. The insurance company for the person you are claiming against will ask you this at the outset, and it will be required for your personal injury summons, and later on in Court if it goes that far.

2. What were the acts of negligence that you allege?

To win your case you will need to prove that it was not your own fault or an act of God or just “one of those things”; you will have to prove the other party, the one you are holding liable, was negligent. Legal negligence is different from what you may understand the word negligence to mean in its ordinary, everyday use.

To prove legal negligence sufficient to win your case you will need to prove:

  1. The person you hold liable had a duty of care to you
  2. The person failed to discharge his duty of care-that is, he failed to act as a “reasonable person” would have acted in the circumstances
  3. You suffered loss and/or damage
  4. The person you hold liable caused this loss/damage by their actions.

3. Who did you report the accident to?

4. Was there any witnesses? If so, who were they?

5. What are your injuries?

This will only arise if you are claiming damages for a personal injury; sometimes you may be lucky and only suffer material damage and financial loss, but no personal injury.

You will need a medical report to prove your injuries; later on, depending on the nature of your injury you may need a specialist medical report, particularly if the case is going to Court.

Conclusion

It will be useful, therefore, to make a comprehensive note at the time the accident occurs as it may prove extremely useful later on, especially if you are suffering from shock. You can make a written note or even an audio recording on your phone.

This may allow you later on to fill in any blanks in your recollection of events, how the accident occurred, and so on. A written note of witnesses and any other relevant facts will also prove useful.

The 5 questions above do not only apply to accidents or motor crashes; they apply to any claim where you are alleging you have suffered an injury as a result of the negligence of another.

This could easily occur in the workplace, for example. You may be thinking about making a claim against your employer for a tort (civil wrong) arising from an injury you have suffered in the workplace as a result of bullying, harassment, or a stress related injury.

Honestly answering the 5 questions above might help identify weaknesses in your case and give you a good idea of whether you have a reasonable chance of success or not.

The Zen of Legal Proceedings in the Circuit Court

circuit-court-legal-proceedings

Circuit court legal proceedings normally commence by way of a Civil Bill, which must be issued out of the Circuit Court office and served on the other party(ies). The jurisdiction of the Circuit Court is for actions worth between €15,000 and €60,000.

There are many types of Civil Bill including

  • Ordinary Civil Bill
  • Equity Civil Bill
  • Landlord and Tenant Civil Bill
  • Ejectment Civil Bill
  • Family law Civil Bill.

Most actions in tort or contract will use the Ordinary Civil bill, but a personal injuries action will commence with a personal injuries summons. Precise details of how the claim arises are set out in the Civil bill, along with details of the cause of action alleged and the financial losses/damages arising.

Read this article for the Personal Injuries Summons procedure.

The Civil Bill/PI Summons is issued in the Circuit Court office and must then be served on the defendant(s). Once the Civil Bill is issued time stops running from the perspective of the Statute of Limitations. Once issued, it is valid for 12 months and can be renewed then, if necessary, once an application is brought to the County Registrar.

Service can be carried out in person, by registered post, or ordinary post on a limited company.

Service of a Civil Bill/PI summons is proved by an affidavit of service or statutory declaration of the person who served it.

Defending the action

The defendant must, if he intends defending the action, enter an appearance within 10 days of service of the summons/civil bill. He must send a copy to the Circuit Court office and to the plaintiff’s solicitor.

Failure to enter an appearance will allow the plaintiff to obtain judgment in default of appearance.

Notice for Particulars

Once an appearance is entered the defendant’s solicitor will send a notice for further and better particulars. This will be a list of questions seeking to flesh out more information about the matters pleaded in the civil bill. The replies to these particulars in a personal injures case will state whether the plaintiff has been involved in previous personal injuries proceedings, and whether an award for damages was made.

Defence

A defence to the action must be delivered within 10 days of delivery of the replies to the notice for further and better particulars, or entry of the appearance if no notice is raised seeking particulars. The defence must be served on the plaintiff’s solicitor. The defence must state the grounds on which the defendant disputes the plaintiff’s claim.

In a personal injuries action the defence must be delivered within 6 weeks of the appearance.

A defendant can also counterclaim against the plaintiff but the counterclaim must derive from the same facts as the plaintiffs action.

A defence and a counterclaim must contain certain information specified in the Civil Liability and Courts Act, 2004.

If a plaintiff fails to progress their case with reasonable speed the defendant can apply to have the case dismissed for want of prosecution. However, it is in rare cases that cases are dismissed; normally the Court will impose a strict time limit for steps to be taken by the plaintiff.

Lodgement of money into court

To satisfy a Plaintiff’s claim a defendant can lodge a sum of money into court in settlement of the proceedings. In the Circuit court this lodgement is without admission of liability, unlike in the High Court. There are Court rules which determine how and when lodgements can be made.

A notice of lodgement and the sum itself are lodged in the Circuit Court office, and the notice is served on the Plaintiff. The fact of this lodgement will not be disclosed to the Judge hearing the case until he/she has decided all issues between the parties, except for liability for costs.

If the amount lodged is acceptable to the plaintiff he must file a notice of acceptance and serve it on the defendant’s solicitor. all further proceedings are then stayed and the plaintiff’s solicitor can then go ahead and tax his client’s costs to date.

If the lodgement is not accepted and the plaintiff at trial received less that the lodgement amount the defendant will be entitled to all his costs from the date of lodgement to the date of hearing. It is vital, therefore, that a Plaintiff and his solicitor considers the lodgement very carefully.

Personal injury actions

The procedure described above is available in PI actions, too, but is unlikely to be used because section 17 of the Civil Liability and Courts Act, 2004 provides for both the plaintiff and defendant serving on each other a formal offer.

Furthermore, section 51A of the Personal Injuries Assessment Board Act 2007 effectively turns an assessment which is rejected by the claimant in to a type of lodgement as if the claim proceeds to full hearing and the assessment amount is not matched in Court and the Plaintiff will not be awarded their costs. In addition, some of the defendant’s costs may be payable, depending on the decision of the Court.

Discovery

Order 32 of the Circuit Court Rules provides for discovery, which usually occurs at the close of pleadings. Discovery is the process of one party seeking discovery of documents from the other. Read also evidence in civil legal actions-what you need to know.

Either party’s solicitor can also serve a notice to produce on the other party which obliges the production for inspection of any documents referred to in the pleadings.

Joining a third party to the proceedings

This is covered by Order 7 of the Circuit Court rules.

Going to trial

Once the defence has been delivered and any lodgement that might have been served has not been accepted by the Plaintiff the Plaintiff’s solicitor must serve a notice of trial. This is brought to the Circuit Court office where a date will be inserted in the Notice. A copy of this notice must be served on the Defendant’s solicitor.

Outside Dublin the notice of trial serves to set the case down for hearing at the next sittings of the Circuit Court. In Dublin a letter must be lodged confirming that all outstanding discovery matters have been dealt with, proofs have been advised by counsel, up to date reports are available, and there are no outstanding particulars on either side.

The letter should also state the type of case, the likely duration and dates to be avoided, if any.

If a plaintiff fails to serve a notice of trial within 10 days of delivery of the defence the defendant may do so.

Even if a witness has confirmed he will attend it is still strongly advisable to issue and serve a witness summons by personal service or registered post.

Amendment of pleadings

If a party needs to amend any pleading the consent of the Court will be required. Getting the consent of the other party in the first instance will be helpful, too.

Notices of Motion

Notices of motion can be dealt with by the County Registrar and can deal with a wide range of issues such as

  • an order for discovery
  • an order to dismiss an action for want of prosecution
  • an order for the enlargement of time for taking any step
  • an order for directions as to service of a civil bill
  • and many more administrative matters.

Judgment following the trial

Judgment will be given following the trial and a copy of the order can be obtained from the County Registrar.

Judgment in default of appearance or defence

If the defendant fails to enter an appearance or defence the plaintiff can obtain judgment “in default”. The procedures are slightly different between debt recovery cases and other actions in tort and contract. In tort and contract cases the procedure to obtain judgment is by notice of motion and grounding affidavit.

Remittal and transfer of actions

Cases can be transferred from the Circuit court to the other courts-District or High-and vice versa.