The Court of Appeal has overturned a High Court judgment on quantum in a personal injuries case, where it held the award was disproportionate and failed to comply with the Personal Injuries Guidelines (Guidelines).

The judgment is the latest in a series of cases where the Court of Appeal considered the approach to quantifying multiple injuries damages cases under the Guidelines. This note looks at that decision, extrapolating the key points. We also discuss the new Bill recently published by the government, addressing the unconstitutionality of a section of the Judicial Council Act 2019, so found by the Supreme Court in Delaney v The Personal Injuries Board [2024] IESC 10.

Collins v Parm and Others [2024] IECA 150

The plaintiff sustained personal injuries from a car crash in 2019 in which she was an unrestrained rear-seat passenger. The matter proceeded as an assessment only before the High Court. The medical evidence was that she suffered psychiatric injuries, physical injuries to her back, neck, teeth, head, and some scarring. The High Court awarded total general damages (for pain and suffering) of €95,000.

The defendants appealed to the Court of Appeal (Court), arguing that the amount of the general damages award was excessive and disproportionate. They further appealed on the ground that the High Court had no regard to the Guidelines, which the Court observed was “perhaps somewhat ironic” as the Guidelines “were not once mentioned by anyone” when the matter was before the High Court.

The Court’s judgment was delivered by Noonan J, who set out the approach to the assessment of damages under section 99 of the Judicial Council Act 2019 and reviewed recent case law regarding the application of and interpretation of the Guidelines. These obligate the court to have regard to the Guidelines and to give reasons where it departs from them.

(a) Most significant injury
The Court summarised that under the Guidelines, judges should ask the parties to identify the “dominant” injury and the corresponding relevant damages set out in the Guidelines. Regarding multiple injuries, the judge is invited to identify the bracket that best resembles the “most significant” injury, which should then be valued and uplifted to reflect the other injuries. The Court stated that the concept of “dominant injury”, which is not defined in the Guidelines, is the same as the “most significant” injury.

The Court accepted that assessment of damages in multiple injury cases can give rise to particular difficulty because each injury is valued separately. This is particularly so where the Guidelines expressly warn of the risk of overcompensation from valuing each injury separately. As explained in recent authorities, the overriding consideration is proportionality. This was reiterated by the Court, which stressed that the most significant of the claimant’s injuries should be identified, if there is one, and the judge should then value that injury before applying any uplift.

(b) No identifiable dominant injury
Where there is no readily identifiable single dominant injury or most significant injury, the judge is not obliged to identify one where that is not reasonably possible. In such a scenario, a discount for overlap should be applied in respect of the range of injuries. Significantly, the Court found that it should adopt a “step back” approach in applying the discount, whereby it looks at the award in the round to ensure it is proportionate in the circumstances.

(c) Quantum
Applying the above approach in this case, the Court noted that the psychiatric injury suffered by the plaintiff was the dominant injury. The Guidelines divide psychiatric damage into four categories, ranging from minor to severe. The Court found that the plaintiff’s psychiatric injury fell within the moderate category and attributed a value of €35,000 to that injury. Regarding her remaining injuries, the Court ascribed €15,000 for the back and neck injuries, €5,000 for the dental injury, €3,000 for tinnitus, and €5,000 for minor scarring. This gave a cumulative total of the non-dominant injuries of €30,000, which the court discounted by one-third to reflect the overlap of the injuries. The cumulative total of the general damages, including the psychiatric injury, led to a gross award of €55,000.

(d) Award
The Court found that the quantum of damages awarded by the High Court was so disproportionate that it amounted to an error of law. It held that it bore no relationship to the other serious injuries that attract similar levels under the Guidelines. The award was also erroneous as the High Court failed to reference the Guidelines in its judgment and gave no reason why it departed from them.

The Court, therefore, allowed the defendants’ appeal and awarded the plaintiff a net award of €59,162, which included a 15% reduction for contributory negligence and special damages.

New Bill to address the unconstitutionality of legislation underpinning the Guidelines

As explained in our previous article, the Supreme Court judgment in Delaney v Personal Injuries Board [2024] IESC 10, upheld the validity of the Guidelines but found that a particular provision of the Judicial Council Act 2019 obliging the Judicial Council to adopt the Guidelines was unconstitutional, as it effectively undermined the independence of the judiciary.

After the decision, the Minister for Justice promised to enact legislation to address this finding. That legislation has now been initiated before the Seanad as part of the Civil Law, Criminal Law and Superannuation (Miscellaneous Provisions) Bill 2024 (Bill). The Bill proposes to insert a new section into the Act to provide for procedures regarding future amendments to the Guidelines and that the current Guidelines have had force since their adoption in March 2021 and continue in force subject to future amendments.

If you would like to discuss any aspect of the Bill or the Court’s decision in Collins v Parm, please contact Margaret Muldowney or Mary Cooney.

Contributed by Gail Nohilly, Katelyn Dunleavy Larkin.