The High Court of Appeal was asked to consider the awarding of €76,000 by the High Court at Dundalk to the injured party in a straightforward soft tissue injury case arising from a road traffic accident. The High Court had awarded €70,000 for the injuries with €6,000 for special damages.
The general damages were broken down into €65,000 for pain and suffering to date and €5,000 for pain into the future. The other party appealed the amount of the award with the injured party cross appealing against the inadequate amount of €5,000 in respect of pain into the future.
The Court of Appeal noted that the case had been conducted with remarkable efficiency by the High Court with the trial lasting about half an hour. The injuries suffered by the injured party involved soft tissue injuries which appeared to have completely resolved within 4 months of the accident.
She was out of work for 6 weeks, got some physiotherapy and took pain killers. At the date of the trial there was no evidence that she would suffer any significant ongoing pain or discomfort.
Court of Appeal
The Court of Appeal noted that damages are meant to be restitutional-that is, put the injured party back in the position they were in before the accident. It noted that pain and suffering had no monetary value but damages were the only way a court can attempt to redress the wrong suffered by an injured plaintiff, but it cannot be restitutional in the true sense.
Damages must be calculated by a conventional sum-that is, what convention and experience society has held to be fair and just for the injury, but the assessment of damages is not amenable to a scientific calculation.
Accordingly, the starting point in assessing damages for any injury is the Book of Quantum of the Injuries Board but it is only a guide and its value may be limited for a wide variety of reasons.
The Court of Appeal noted the merit and value of consistency in awards in personal injury cases generally and the intended introduction of the personal injuries guidelines under the Judicial Council Act 2019 to replace the Book of Quantum.
The Court went on to look at some comparable cases and referred to Nolan v Wirenski which summarised all the relevant authorities in relation to the award of damages. It also held Payne v Nugent  IECA 268 as a useful starting point and the case of Shannon v O’Sullivan  IECA 93 as helpful.
The Court of Appeal held that the Book of Quantum had a significant role to play in this case as the injuries were reasonably defined in terms of categorisation, severity and duration.
It awarded €30,000 for pain and suffering to date and, agreeing with the High Court assessment on this head, €5,000 for pain and suffering into the future. Special damages were agreed at €6,000 therefore the total awarded was €41,000 which substituted the sum of €76,000 awarded by the High Court.
A €35,000 reduction is noteworthy, to put it mildly, especially when it is 50% of the original award.
Regarding costs he invited the parties to make written submissions on the appropriate form of the order to be made. This could be significant as this case was taken in the High Court but the award ultimately made by the Court of Appeal did not agree it was a High Court case.
This is a useful case to read if you are looking for guidance as to how Courts will/should assess personal injury damages. It refers to some other cases and the circumstances where the Book of Quantum can be useful in deciding what is a “conventional sum” and what society holds to be fair and just in attempting to provide restitution for the injury suffered.
The High Court in a 2020 decision, Sheehan v Bus Eireann/Irish Bus & Anor ( IEHC 160), has awarded damages to a lady who came upon an accident and suffered post traumatic stress as a consequence of her actions in trying to assist.
(i) that the plaintiff suffered a recognisable psychiatric illness;
(ii) that the psychiatric illness was shock induced;
(iii) that the shock (and, hence, the consequent psychiatric illness) were caused by the
negligence of the defendant;
(iv) that the shock was sustained by reason of actual or apprehended physical injury to
the plaintiff or another person; and
(v) that the defendant owed the plaintiff a duty of care not to cause the plaintiff a
reasonably foreseeable injury in the form of psychiatric illness.
In this case the question the Court had to address was number (v) above-that is, did the Defendants owe a duty of care to Ms Sheehan and their defence was that they did not.
Ms Sheehan came upon a road traffic accident in Cork in 2017. Ms Sheehan did not see the accident occur but she got out to investigate when some debris hit her car.
When she investigated she got a tremendous shock but managed to phone the emergency services and looked for any other survivors of the accident.
She later developed a depressive adjustment reaction and post traumatic stress disorder which led to this claim for damages.
The defence put forward by both defendants was that no duty of care was owed to Ms Sheehan for two reasons:
She was merely a secondary victim of the accident and, as a matter of public policy, and could not establish a duty of care by the defendants, including the deceased driver
The driver of the car was a primary victim of self inflicted injuries and did not owe any duty to a secondary duty who suffered a psychiatric injury as a result
The defence accepted that Ms Sheehan had suffered a significant psychiatric injury and the prognosis for her recovery remained guarded and could take some further time.
This defence pointed up an interesting legal distinction between these types of cases in the United Kingdom, and a categorisation of victims as primary and secondary, and the approach taken in Ireland.
Did the defendants owe a duty of care to Ms Sheehan?
The High court referred to the Glencar Exploration case as follows:
The most recent authoritative statement of the test for the existence of a duty of care isthat of Keane CJ in Glencar Exploration plc v Mayo County Council (No. 2)  1 IR 84
‘There is, in my view, no reason why courts determining whether a duty of care arises should consider themselves obliged to hold that it does in every case whereinjury or damage to property was reasonably foreseeable and the notoriouslydifficult and elusive test of “proximity” or “neighbourhood” can be said to have beenmet, unless very powerful public policy considerations dictate otherwise. It seemsto me that no injustice will be done if they are required to take the further step ofconsidering whether, in all the circumstances, it is just and reasonable that the lawshould impose a duty of a given scope on the defendant for the benefit of theplaintiff, as held by Costello J. at first instance in Ward v. McMaster  IR. 29,by Brennan J. in Sutherland Shire Council v. Heyman (1985) 157 CLR 424 and bythe House of Lords in Caparo Industries plc. v. Dickman  2 AC 605. AsBrennan J. pointed out, there is a significant risk that any other approach will resultin what he called a “massive extension of a prima facie duty of care restrained onlyby undefinable considerations …”
Regarding the defence arguments, the first one being that she was merely a secondary victim the High Court held:
Having considered these authorities, I conclude as follows. First, the test for liability fornegligently inflicted psychiatric injury is that set out by Hamilton CJ in Kelly. The test forthe existence of a duty of care, the fifth requirement of the test in Kelly, is thatarticulated by Keane CJ in Glencar Exploration plc. A rigid primary/secondary victimdistinction, entailing an inflexible adherence to the Alcock control mechanisms, has norole to play in the application of either. To paraphrase the words of McCarthy J in IrishShell Ltd v Elm Motors Ltd  IR 200 (at 227), whilst the judgments in cases decidedin the English Courts at all levels will, on a great many occasions, provide convenient and,indeed, convincing statements of principle and attractive arguments in favour of suchprinciples, they do no more than that.
And the High Court went on to say,
Because Ms Sheehan did not actually see the car collide with the bus in the dark andbecause, in that context, Ms Sheehan herself described ‘coming upon’ the scene of thecollision when she got out of her own car, the defendants urge me to conclude that shewas not a ‘primary victim’ of the accident. For the reasons I have already given, I do notthink that anything turns on the point. But lest I am mistaken in that regard, I proposeto address it. Ms Sheehan’s car was directly struck by debris from the collision and shebrought her vehicle to a stop on a dark country road for no other reason than that sheperceived something disturbing or alarming had occurred in the immediate vicinity. As amotorist within the radius of flying debris from the collision, I am satisfied that she was inthe area of risk of foreseeable physical injury and, as a motorist whose vehicle was struckby flying debris, I am satisfied that she was a participant in the accident, albeit one onthe periphery of it. Applying the definition of ‘primary victim’ so construed, I wouldconclude that Ms Sheehan was a primary, rather than secondary, victim of the accident,were it necessary to consider and apply that distinction for the purpose of the law onliability for negligently inflicted psychiatric injury – although I do not accept that it is
Thus, were it necessary to do so, I would reject the argument that, for Ms Sheehan tosucceed in her claim as a rescuer, there is a threshold requirement that she objectivelyexposed herself to danger or reasonably believed that she was doing so, or – differentlyput – that it is necessary for her to establish that she came within the range offoreseeable physical injury in giving assistance at the scene of the accident. But it is notnecessary for me to decide the point in the circumstances of the present case because, as I have already indicated, I am satisfied that Ms Sheehan did expose herself to danger inproviding assistance at the scene of the crash on the dark roadway and that she camewithin the range of foreseeable physical injury in doing so. As Douglas Brown J acceptedin Cullin v London Fire & Civil Defence Authority (1999) PIQR 314, in most instances thedanger to a rescuer will not be the same as the one that caused the accident or disasterthat precipitated the rescue.
The second defence argument was
The defendants’ second argument is that Ms Sheehan’s claim must fail because, as a matter of policy, there is no liability in negligence where the primary victim was thenegligent defendant and the shock to the plaintiff arose from witnessing the defendant’sself-inflicted injury.
Thus, I reject the argument that the duty of care to Ms Sheehan in this case is negatedsimply because the primary victim, whose self-inflicted injuries caused the shock that ledto Ms Sheehan’s psychiatric injury, is a deceased person represented by one of thedefendants.
I find that the deceased driver in this case, represented by FBD, did owe Ms Sheehan aduty of care not to cause her a reasonably foreseeable injury in the form of psychiatricillness. I can identify no consideration of public policy that dictates otherwise. Further, Iconclude that it is just and reasonable that the law should impose that duty on FBD forthe benefit of Ms Sheehan. There is no dispute that Ms Sheehan’s satisfies each of theother elements of the test to establish the defendants’ liability to her in negligence. Thus,it follows that Ms Sheehan is entitled to recover damages from FBD to compensate her forthe psychiatric injury she has sustained.
Because of her experience on 28 January 2017, Ms Sheehan developed a moderatelysevere post-traumatic stress disorder (‘PTSD’), consequent upon an acute stress reaction.
She was out of work for an initial period of five weeks and, intermittently, for shortperiods thereafter, before leaving her job as a hairdresser in February 2019 on the basisthat she felt unable to continue. Her condition has placed great strain on her familyrelationships, including her intimate relationship with her husband. She continues toundergo therapy and counselling, and to take a range of medications. When assessed inSeptember 2019, she had still not yet recovered and the prognosis remained guarded.
Her own consultant psychiatrist is hopeful that, in time, she will make a full recovery,subject to a twenty-five percent chance of further anxiety, depression or stress-relatedconditions in the future.
81. I assess Ms Sheehan’s general damages in the sum of €65,000 to date and €20,000 intothe future, making a total of €85,000. Special damages are agreed in the sum of €2,238.
The total award is, therefore, €87,238.
Mr Justice David Keane provides an excellent analysis of the development of the law in Ireland and the UK regarding negligently inflicted psychiatric injury. If you have an interest in law and the law of negligence this decision is well worth a read. You can read the full decision in Lisa Sheehan and Bus Eireann and Vincent Dower  IEHC 160 here.
There has been a vigorous debate in Ireland over the last 12 months or so about insurance, the cost of insurance, personal injury claims, bogus claims, excessive awards from the Courts, small businesses struggling to afford rising insurance premiums, and so on.
The Courts appear to be showing a greater enthusiasm to scrutinise personal injury cases. For example the awards made by the High Court in 2018 were down by 29%, according to the Courts Service annual report for 2018.
In 2019 the Courts appear to have shown a greater awareness of the plaintiff’s responsibility for his own safety. For example, in Reilly v Mangan  IEHC 91, the plaintiff was held responsible for his own injuries when he was injured by a taxi who drove over his ankle when he had been drunk and involved in a fight on a busy street.
The Court of Appeal dismissed the Plaintiff’s claim in White v Doherty & Anor  IECA 295. The plaintiff had suffered a trip and fall injury in a caravan park but the High Court and Court of Appeal both found that users would be expected to take care in such a park for loose or embedded stones.
In Keegan v Sligo County Council  IECA 245 the Court of Appeal sent the case back to the High Court because the High Court had not had regard for whether the plaintiff’s alcohol consumption was a factor in his accident.
The Court in McCarthy v Twomey  IEHC 719 accepted that the defendant had been in breach of his statutory duty to the plaintiff in failing to appoint a project supervisor and failing to have a health and safety plan for work on site. However, the court also held that that breach did not cause the accident of the plaintiff.
The Plaintiff needs to prove negligence in a personal injury case, not merely that he has suffered an injury and Courts appear to be taken a firmer line in ensuring the Plaintiff discharges this burden of proof.
An employer does not have an absolute duty to ensure the safety of the worker and the spectre of “strict liability” is not accepted by the Courts.
The High Court held that one of these claims was fraudulent
and the other one involved exaggerated injuries and dismissed both claims.
The Judge in this case also criticised a solicitor for
referring the claimants to a medical consultant when a solicitor ‘has no
medical expertise’ and held that the expensive medical reports came into being
for legal reasons and to support the claims, not on medical grounds.
Mr Ali’s case was dismissed because he gave misleading
evidence-for example that Ms O’Connell was in the car-and Ms O’Connell’s claim
was dismissed because the Court did not believe she was actually in the motor vehicle
at the time of the gentle, minimal impact between two cars.
Ms O’Connell’s claim had previously been dismissed in the Circuit
Court as fraudulent.
The Court noted that expert medical witnesses hold a privileged
position in the Irish legal system because they are allowed to give their
opinion rather than make factual observations.
Assessment of damages
The Court also looked at what might have been awarded to the
claimants if their cases had not been dismissed. Mr Ali had been awarded
€17,500 in the Circuit Court but the High Court held a more appropriate sum
would have been €3,000.
The High Court also pointed out where the real power lay in
cases with an ‘impecunious plaintiff’.
37. This case also illustrates why unmeritorious claims
by impecunious plaintiffs are usually settled. It is not because there has been
negligence on the part of the defendant, but rather because settling a claim
costs less than winning such ‘nuisance claims’, as the legal costs incurred in
winning will not be recoverable from the plaintiff. Logic also dictates that
the greater the legal costs being threatened, the greater the economic
imperative to settle for a defendant. So, in this case, with legal costs so
high (say €40,000), compared to the level of the award (€17,500 was awarded to
Mr. Ali in the Circuit Court), a likely settlement (of say €7,000) makes
38. In many of these unmeritorious cases, where the legal
costs dwarf any likely award of damages, a defendant considering settling, is
in reality dealing, not with the merits of the case, but rather with the issue
of who is going to pay the very significant legal costs. Thus, the real issue
for a defendant is:
• whether, in the case of an impecunious plaintiff with
an unmeritorious claim, settling makes economic sense in order to avoid the
defendant having to pay his own very large legal costs even after winning, or
• whether in the case of a wealthy plaintiff with an
unmeritorious claim, settling makes economic sense in order for the defendant
to buy off the very small risk of having a very large legal bill (which may
dwarf the value of the claim itself).
Two sets of legal costs
The Judge also noted that an impecunious plaintiff can inflict
significant costs damage on a defendant in these types of cases.
Plaintiff with fraudulent claim can inflict two sets of irrecoverable costs
40. This case also illustrates that where an impecunious
plaintiff such as Ms. O’Connell takes an action which is dismissed by the Circuit
Court, it seems, as a fraudulent claim, and thereby inflicts irrecoverable
legal costs on a defendant, there appears to be no restriction (e.g. the
requirement to provide security for costs) on such a plaintiff from inflicting
a second set of irrecoverable legal costs on the defendant in an appellate court.
Thus, in this case, the defendant, Dr. Martin (or her insurance company), will
likely have to pay her own legal fees for fighting and defeating a fraudulent
claim on two occasions. On the other hand, the plaintiff, Ms.O’Connell had a
‘free go’, (in the sense that Ms. O’Connell is unlikely to pay the defendant’s
legal costs) not once, but twice, in taking a fraudulent claim, in the hope of
receiving damages or a settlement.
Not good practice for solicitors to refer clients to medical consultants
41. Against this backdrop and in order to ensure that
Medical Reports are not generated without any medical need, it is this Court’s
view that it is not good practice for solicitors to refer clients to medical
specialists. The more usual way in which Medical Reports come to be relied upon
in court cases, is that a client, if and only if he/she has a medical need, is
referred by a person with medical expertise, usually the client’s own GP, who
has knowledge of the client’s medical history, to a Consultant. Only after this
threshold of ‘medical need’ is passed, would it be usual for there to be a
Medical Report which then can be provided to the client’s solicitor for the
purposes of litigation.
Principles in assessing general damages
The Judge looked at the guiding principles in assessing
the following principles derived from decisions of the
Court of Appeal and the Supreme Court, which bind the High Court, the Circuit
Court and the District Court
Fair to the plaintiff and defendant
Minor injuries/modest damages, middling
injuries/moderate damages etc
Award proportionate to other awards and cap on
Award to be reasonable in light of general level
of after-tax incomes
Appropriate scepticism applied to litigants’
Common sense applied to the parties’ claims
Caution when relying on medical and other expert
Ms O’Connell’s claim was dismissed for being fraudulent as her
evidence was not accepted as truthful; Mr Ali’s claim was dismissed for giving
misleading evidence and for exaggerating the claim.
Even if Mr Ali’s claim was found to be valid he would only
have been entitled to €3,000 for general damages which would have been swamped
by the costs of pursuing his case in the Circuit Court and then on appeal to
the High Court.
“I was holding somebody’s bottle. The bottom line is I was injured, nobody was drunk, nobody was messing. We had one glass of wine before going out and we had just one glass at the hotel. I was seriously hurt and I was mortified”.
She appears to lack understanding that the fact of her being injured is not the bottom line. It is only one factor in a successful personal injury claim.
An equally important hurdle to clear to win such a case is
to prove somebody else was negligent and that negligence caused the accident and
the consequential injuries and loss.
Plaintiffs regularly lose personal injury claims even if
they have suffered injuries if the injuries are caused by a mere unfortunate
accident where nobody is negligent.
She also says, “I am a citizen and I am entitled to the same due process in law as everybody else.”
Yes, she certainly is entitled to due process, and that
involves her proving a certain number of things in a successful personal injury
Was there a duty of care owed by the defendant
hotel to the plaintiff? Yes, absolutely because the hotel owes a duty of care
to its patrons, customers and anyone who is proximate;
Did the defendant discharge that duty of care by
acting as a reasonable person would in discharging their duty of care? This was
a problem for Ms Bailey’s case;
Did the plaintiff suffer damage, and was that damage/injury
foreseeable? Maria Bailey TD tells us she did suffer an injury and this would
be easily proven with a medical report and records;
Was there causation-that is, a sufficiently close
connection between the conduct of the defendant and the loss suffered by the
A cursory look at these 4 factors that need to be present to
win her case would leave you in no doubt that the difficult part of her case
would have been to prove the hotel failed to discharge their duty of care and
was, as a consequence, negligent.
If the hotel is held to be negligent, the hotel is liable
for the losses that flow.
So, how was Maria Bailey to prove the hotel was negligent
when it came to her falling off the swing? I have not seen the pleadings or the
particulars in this case and am relying on what has been reported in the media.
What has been reported in the media is that Ms Bailey was holding
something in each of her hands which would have prevented her from holding on
to the swing when she mounted.
What has also been reported is that the acts of negligence
alleged by Ms Bailey against the hotel was the hotel’s failure to provide a
supervisor for the operation of the swing.
This is a proposition which, if successful, would have
appalling consequences up and down the country for anybody providing a swing
for the enjoyment of children.
Lord Denning said when upholding the appeal of the West
Midlands Police in a case brought by the Birmingham Six it would be an “appalling
vista” for the English legal system to hold that the police officers had lied
as argued by the Birmingham Six.
The notion of playground operators having to provide
supervision for the operation of their swings takes removal of personal responsibility
from the individual to a type of Kafkaesque state. This is an equally appalling
vista, in my view.
What next? Supervisors for the operation of slides? Water
slides? Bouncy castles?
Maria Bailey TD has instructed her solicitor to drop her
claim and she has insisted she has done nothing wrong.
Unfortunately, we will not now see how her obligation to
prove negligence against the hotel would have got on, nor the proposition that
the hotel should have had a supervisor to supervise the operation of a swing on
Ms Baily tells us
“I have a vision and I want to keep my focus on that.”
Hopefully that vision includes putting her shoulder to the
wheel in her party’s avowed intention to tackle the cost of personal injuries
payouts and spiralling insurance costs for businesses.
Nobody denies Ms Bailey’s right to bring a personal injury
claim, she’s perfectly entitled to do so.
To win her case, however, she needed to prove negligence by the hotel which led to her fall and injuries. It would have been interesting to see how that would have been dealt with by the Court.