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Whiplash award reduced from €76,000 to €41,000 as judge says personal injury litigation 'should not be a lottery'

“I am satisfied that by any reasonable measure it cannot be viewed as proportionate,” Mr Justice Seamus Noonan said of the original award.

File photo
File photo
Image: Graham Hughes/Photocall Ireland!

THE COURT OF Appeal has reduced an award for a whiplash injury, noting that high award levels in personal injury cases are affecting the cost of insurance.

In the judgment, one of the appeal court judges said that personal injury litigation “should not be a lottery”.

Driver Emma McKeown was awarded €70,000 in general damages and €6,000 in special damages by a High Court judge in Dundalk in December 2019, after suffering whiplash following an accident in March 2017.

The claim was against Alan Crosby and Mary Vocella, who appealed the amount of the award.

Court of Appeal judge Mr Justice Seamus Noonan stated that McKeown was honest and did not exaggerate her injuries, but said the amount awarded was too high.

The Court of Appeal this week awarded total general damages of €35,000 plus agreed special damages of €6,000, making in total €41,000. The High Court awarded €70,000 for general damages together with agreed special damages of €6,000.

“Taking into account all the relevant factors to which I have referred in the context of the proportionality of the award in this case, I am satisfied that by any reasonable measure it cannot be viewed as proportionate. It is not proportionate when viewed against the measure of the maximum for the most serious injuries,” Justice Noonan said in his judgment.

The judgment notes: “The cost of (motor, public or employer’s liability) insurance is for most ordinary people and businesses, a significant outgoing. The extent to which awards by courts influence that cost is in recent times, a matter of widespread public discourse, debate and dispute.

“Whatever the reality may be, it is clear that awards made by the courts have an impact on society as a whole and the courts are mindful of that fact. Ultimately each member of society must bear the cost of a compensation system whether through the payment of insurance premia in the case of private defendants or taxes in the case of public defendants. Society thus has a direct interest in the level of awards.

“Frequently, the identity of the trial judge would not be known until moments before the case actually commenced, resulting in varying outcomes depending on the ‘draw’. It is clear that this has the potential for injustice. It cannot be fair to either plaintiff or defendant that the value of their case depends on the identity of the trial judge.

“Personal injury litigation should not be a lottery and plaintiffs and defendants alike are entitled to reasonable consistency and predictability. This is particularly important in the context of injuries which fall at the lower end of the spectrum as these constitute the vast bulk of cases, most commonly involving soft tissue, or ‘whiplash’ injuries.”

‘Sky-high general damages’

The Alliance for Insurance Reform has welcomed the decision.

Linda Murray, co-director of the alliance, said: “We welcome the timely and practical insights of the Court of Appeal in this judgment on issues such as the level of personal injury awards, the current lack of consistency in such awards and the impact on society of those awards.

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“SMEs, voluntary groups, charities and sports and cultural organisations, the core of the Irish economy and Irish society, are being seriously damaged by the cost of insurance or in numerous cases now unable to obtain insurance. As the Personal Injuries Commission clearly identified, sky-high general damages are at the heart of this issue and must be cut to reflect international norms to ensure that legitimate minor injuries attract modest damages.”

Peter Boland, another co-director, added that general damages for minor fully-recovered injuries must be “comprehensively reduced”.

“Responsibility for this task is currently with the Personal Injuries Guidelines Committee of the Judicial Council and the Committee is due to present draft guidelines to the Board of the Judicial Council by the 28 October,” Boland said.

“Policyholders cannot wait any longer for dramatic, meaningful reductions in awards for minor injuries. The Alliance expects general damages for minor injuries to be dramatically reduced along the lines of the Fair Book of Quantum published by ISME,” he added.

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Órla Ryan

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