Compensation and Damages Awarded in Personal Injury Cases Dublin Ireland

 

In personal injury actions it was held by the Supreme Court, in the case of Reddy v Bates [1984] ILRM 197, that Damages are to be assessed under various headings and then the total sum of the award should be considered to establish whether such total award represents fair compensation for the Plaintiff. Some of those headings or types of Damages are outlined as follows...

 

General Damages

In awarding General Damages the court attempts to compensate the Plaintiff for non- monetary losses. Such losses include Pain and Suffering, Loss of Expectation of Life and Loss of Amenity. Pain and suffering can manifest itself through physical injury, psychiatric illness, embarrassment and lack of enjoyment in life.

a) Physical Injury

When assessing Damages or Compensation for physical injury, the Judge may refer to the Book of Quantum a publication which lists various physical injuries and gives them a financial value according to the severity of the injury and the length of time an accident victim may take to recover. The Book of Quantum fails, however, to take into consideration other relevant variables, such as the age, gender or indeed the subjective impact the injury has had on the accident victim's life. For this reason the Judge will merely look to the Book of Quantum for guidance while endeavouring to assess each individual case on its own merits.

As highlighted by Judge Quirke in the recent case of Maggie Yun V MIBI [2009] IEHC 318 (2009), the underlying objective of the court is to place the Plaintiff in so far as money can do so, in the position she would have occupied had she not suffered her injuries. Considering the latter, Judge Quirke awarded the Plaintiff, a twenty year old Chinese national, €325,000.00 . She sustained serious spinal injuries following a road traffic accident in Drogheda. In making his award Judge Quirke, increased the previous cap on general damages to €450,000.

b) Psychological Injury & Loss of Amenity

If a person suffers negligently-caused physical harm for which another is held liable, the person may also recover damages for psychological injury consequential to the physical harm.

The psychological impact and effect on an individual who suffers physical injury can be profound, devastating and far-reaching.

These effects were well documented in the English case of Johnson v Le Roux {2011 EWHC 1062} where a successful businesswomen, Penny Johnson, was left with facial palsy after cosmetic surgery was carried out negligently. Le Roux Fourie, the Plastic surgeon, was accused of carrying out experimental surgery on Penny Johnson and leaving the businesswoman with nerve damage following a facelift.

The physical injury suffered by Ms. Johnson resulted in a prolonged adjustment disorder with features of Anxiety and Depression. A combination of the chronic pain suffered as a result of her injury together with the loss of confidence brought about by the visible injury provoked and triggered the onset of her psychological disorder.

The Plaintiffs case was focused upon demonstrating the extent of the effects that her injuries had upon her personal and professional life. The Judge held that these injuries had a devastating effect on her and led directly to the failure of her business.

In assessing the psychological impact, he also took account of the relationship of trust existing between the Plaintiff and the Defendant, that of clinician and patient.

Mrs Johnson was awarded a total of £6.2 million in damages. Of this figure £ 80,000.00 was attributed to pain and suffering for her physical injury, psychological injury and loss of amenity. The Judge observed that compensation for a facial disfigurement will depend to a considerable extent upon its psychological consequences. The significant balance of the award reflected her Loss of Earnings to date and future Loss of Earnings.

Special Damages

Special damages compensate the Plaintiff for the quantifiable monetary losses suffered. In essence, any expense incurred directly from an accident sustained through the negligence of another can be recovered.

In a personal injury setting, the following are some common and indeed novel financial losses that can occur;

Lost wages or earnings (both past losses and future losses, if they can be calculated)
Costs associated with the replacement of damaged property
Costs associated with medical expenses (such as hospital or chemist bills)
Cost of domestic help
Pension rights lost
Additional health care and living expenses
Travel expenses associated with attending your Solicitor or Doctor
Loss of Inheritance

a) Loss of Wages or Earnings

As seen in Johnson v Le Roux, Damages for monetary loss resulting from physical or consequential psychological harm can be very large and can be so even in cases where the Plaintiff has suffered no permanent physical impairment.

In the case of Johnson v Le Roux, Ms. Johnson owned a successful business management company called BCL. She claimed that but for the negligent surgery the turnover of BCL would have increased rapidly and dramatically. In 2002 (the accountancy year prior to the surgery), the turnover of the company was £3,143,549.00 with a gross profit of £868,811.00. Using expert Actuarial assistance, she contended that by 2013 the company would have had a turnover of £170 million per annum. Several business associates gave evidence as to the difference between her engagement with the business both pre and post the negligent surgery.

The Judge held that the consequential psychological injuries led directly to the failure of her business. In light of the Plaintiffs remarkable career prior to the negligent surgery and the subsequent dramatic demise of her career following the surgery, the Judge awarded £ 4,200.552 for Loss of Future Earnings.

Mitigating Loss of Earnings

A Plaintiff has a duty to take reasonable steps to minimize the losses incurred, for instance by finding alternative employment after an accident.

The rule is that Damages are based on the net consequential loss. If the Plaintiff is in receipt of social welfare payments they might need to be deducted from the Plaintiff's losses.

b) Costs associated with Additional or Future Medical care

Some injuries irrevocably change the lives of their victims and indeed their family forever. Catastrophic injury cases, in particular, leave their victims often requiring life long medical and domestic assistance.

Injuries deemed to be catastrophic, due to the enormous effect they have on the lives of the individuals who experience them, include the following:

  • Limb Amputation

  • Brain injury

  • Spinal cord injury

  • Loss of sight

  • Deafness

  • Severe burns

  • Multiple and severe fractures

Care Consultants and Occupational Therapists are engaged to assess and calculate what their weekly care requirements would be. The Court must endeavour to calculate the cost of future care based on the evidence provided by the Care Consultants, Actuaries and Medical Experts. There is an element of guess work involved in this calculation and accordingly a risk that the victim may end up with insufficient funds to cover the cost of their care later in life if that calculation is incorrect or inadequate.

In an effort to deal with the injustices of the aforementioned scenario, Mr. Justice Nicholas Kearns set up a Working Group to look into the possibility of recommending reforms to the law in relation to the manner by which damages in personal injury claims, particularly catastrophic injury claims, are awarded.

Pending the possible reform a number of catastrophic injury cases which came before the High Court in recent months have been adjourned pending the Working Group's proposals. It is thought that the Group will introduce the regime of periodic payments to deal with items of future care and assistance.

The case of Charlotte Barry v National Maternity Hospital was adjourned for a period of two years in anticipation of the necessary reform being enacted so as to enable the cost of future care to be reviewed by way of an annual index linked payment for life. In that case the Plaintiff was a five year old girl who suffered Cerebral Palsy at birth as a consequence of the negligence of the Defendant.

c) Loss of Inheritance

The case of Davoren v. HSE [2011] IEHC 460 highlights a very novel approach to dealing with Economic Loss suffered as a result of negligence. Judge O'Neill awarded €1,546,982 in damages to the widow and family of a farmer who died as a result of negligence in his treatment for colitis at University College Hospital, Galway. Most of the award arose due to the loss of an expected €1.5 million inheritance of the mans mothers farm. After he died, his mother altered her Will which initially had left the 623-acre farm to him so as to leave it now to her daughter.

In summation, Damages are the primary remedy available to a Plaintiff in a personal injury claim. Damages are essentially financial compensation awarded to the Plaintiff because they have suffered injury. As stated by Justice Quirke in the case of Maggie Jung v MIBI, the main objective of awarding Damages is to put the Plaintiff back into the position they were in before the incident or accident occurred.

An important feature of Damages, is that once an award has been made by the court, the Plaintiff cannot subsequently return to court seeking further Damages in the same cause of action. Therefore, it is crucial that a clear medical prognosis is given in personal injury cases before proceeding to trial.

 *In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

(c) Brian Morton & Co. Solicitors. All rights Reserved.



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