Not all damage warrants compensation award

Personal injuries guidelines were adopted by the Judicial Council on Saturday (6 March), which catalogue “fair and just” damages in respect of varying types of personal injury.

Describing the process of converting pain and suffering into monetary award as “an artificial task”, the report of the Judicial Council says that this difficulty has historically led to judges making widely varying awards in respect of relatively comparable injuries.

Equality before the law

This not only offends the principle of equality before the law, but results in unnecessary appeals and additional costs, the Judicial Council says.

Therefore, the guidelines’ goal is for greater consistency, despite the unique features of each case.

Courts will retain their independence and discretion, but it will be mandatory to have regard to the guidelines.

Proportionate

Awards must be proportionate to the injuries sustained, and proportionate to other cases involving injuries of a greater or lesser magnitude.

The most devastating and catastrophic of injuries will attract an award of general damages of around €550,000.

At the conclusion of every case, the trial judge should ask each party to identify the relevant damages bracket, supported by the evidence, in respect of the dominant injury.

Brief submissions will also be made in terms of severity, as to whether the injury lies at the top, middle or bottom of the bracket.

In a “careful and sensitive manner”, the trial judge will then proceed to consider how the guidelines should impact on the court’s award.

“It is of the utmost importance that the overall award of damages made in a case involving multiple injuries should be proportionate and just when considered in light of the severity of other injuries which attract an equivalent award under the guidelines,” the report says.

Some injuries are not included in the guidelines because of lack of data – such as the loss of an ovary, the severance of a nerve or artery, or female genital mutilation. However, the structure established by the guidelines may provide assistance, the report says.

Novel injuries

Novel or infrequent injury should be valued by reference to the damages guided for equally significant injuries.

Where injuries result in foreshortened life expectancy, and where an action survives for the benefit of the estate of a deceased person, the damages will not cover loss or diminution of expectation of life or happiness.

Cases falling within this category will include those relating to undiagnosed cancers or terminal illnesses contracted through workplace negligence (for instance, asbestosis).

Injuries involving quadriplegia are guided at €400,000 ­to €550,000 and considerations affecting the level of the award include:

• Age,
• Life expectancy,
• Extent of residual movement,
• Pain,
• Effect on other senses,
• Psychological sequelae, including depression, and
• Effect on familial and other relationships.

Paraplegia is guided at €320,000 to €450,000 with considerations including:

• Age,
• Extent of residual movement,
• Pain,
• Effect on other senses,
• Psychological sequelae, including depression,
• Effect on familial and other relationships, and
• Level of independence.

Brain-damage injuries

Serious and moderate brain damage will be weighed on a variety of factors, such as normal social life and return to some form of work, with or without restoration of all normal function.

Therefore, awards will vary between €200,000 to €350,000; €120,000 to €220,000; €60,000 to €140,000; and €25,000 to €60,000.

Minor brain damage or head injury with minimal effects, and a substantial recovery within six months, will be bracketed between €12,000 to €25,000; €6,000 to €12,000; €3,000 to €6,000; and €500 to €3,000.

Judges must remember that not all damage warrants an award of compensation, the Judicial Council says.

Upset, distress, grief, disappointment and humiliation do not attract compensation.

However, severe psychiatric damage with a poor prognosis is set at a €80,000-to-€170,000 level.

The same condition, with a more optimistic prognosis, is pegged at €40,000 to €80,000.

Moderate psychiatric damage with a good prognosis could attract an award of €15,000 to €40,000.

Minor psychiatric damage with a full recovery will attract an award of €500 to €15,000.

Reactive psychiatric disorder

Severe post-traumatic stress disorder (PTSD), where there is specific diagnosis of a reactive psychiatric disorder in response to either experiencing or witnessing a terrifying event, can attract €60,000 to €120,000.

Serious PTSD with effects causing significant disability is gauged at 35,000 to €80,000.

Moderate PTSD without grossly disabling effects is set at €10,000 to €35,000.

Total blindness and deafness, together, are set at €400,000 to €500,000, while total blindness is from €270,000 to €400,000.

Loss of sight in one eye, or loss of one eye with reduced vision in the remaining eye, is at €120,000 to €300,000.

Loss of one eye/loss of sight in one eye is set at €80,000 to €120,000.

Total deafness can attract an award of €150,000 to €220,000.

Industrial disease

The report says that chest injuries of traumatic origin mostly relate to industrial disease, as distinct from traumatic injury. It sets out various factors for considering awards, up to and including a lung, which is to be compensated in the range of €150,000 to €210,000.

A simple injury (such as a single penetrating wound) causing some permanent damage to tissue, but with no significant long-term effect on lung function will attract an award of €15,000 to €30,000.