A three Judge Court of Appeal has delivered Judgment in the case of McKeown -v- Crosby which analyses the application and efficacy of the Book of Quantum in Personal Injuries cases. Whelan J. and Power J. are both in agreement with Noonan J. who gave Judgment electronically.

This Appeal arises out of a €76,000 damages award from a Personal Injuries Action brought before the High Court in December of 2019.

The award for damages was broken down as €65,000 for pain and suffering to that date, €5,000 for pain and suffering into the future, and €6,000 for agreed Special Damages.

The appeal centred on whether the Book of Quantum is fully applied in Personal Injuries cases and how better consistency can be achieved.

The Appellants grounds for appeal were on the basis that the High Court Judge had erred in awarding such an amount and for not according sufficient weight to particular factual matters by the Trial Judge.

Interestingly, there was a cross appeal by the Plaintiff of the High Court Action who appealed the amount of future General Damages (€5,000) awarded amounted to “an error of law and fact by the Trial Judge.”

Giving Judgment electronically on the 11th August 2020, Noonan J. highlighted the disparity across awards to Plaintiffs and also acknowledging that in the world of Personal Injuries Litigation, some members of the Judiciary were looked upon more favourably than others, depending what side a practitioner was representing, of course. He stated that it cannot be fair on either party for the value of an award to be dependant on the Trial Judge.

In what could be viewed as a move from the traditional manner of making awards, Noonan J. suggests that legal practitioners could be afforded the opportunity to address the Court on the application of the Book of Quantum, much as is the case at present when addressing the Court regarding the issue of the costs of an Action. This is with a view to achieving greater consistency especially in lower value cases which, by definition, should be easier to assess.

Concluding the Judgment, Noonan J. found that the award of the High Court “by any reasonable measure it cannot be viewed as proportionate.” The Court applied Payne -v- Nugent as the most directly comparable case and again found the award to be disproportionate. As such, the Court awarded €25,000 for pain and suffering to that date, €5,000 for pain and suffering into the future and €6,000 for agreed Special Damages.

The reduction was based on the Book of Quantum alone as the Appellate Judge had only a short transcript and an ex-tempore Judgment from the originating matter to refer to.

The Judgment raises a number of questions regarding the awards in Personal Injuries Actions today.

Firstly, the reduction of €40,000 in General Damages awarded clearly places the Plaintiff within the Circuit Court jurisdiction, and not that of the High Court. Therefore, had a Justice of the High Court who was minded to take the same view as Noonan J. heard the matter originally, the Plaintiff would have been very much at risk of a Costs Differential Order under Section 17(5) of the Courts Act, 1981 (as amended) which provides that after the Hearing of and Action a Judge may “grant a special certificate in writing that, in the opinion of such Judge, it was reasonable in the interests of justice generally, owing to the exceptional nature of the proceedings or of any question of law contained therein, that the proceedings should have been commenced in the court in which they were commenced.”

This could have led to the Plaintiff being liable for the difference in the Plaintiff’s costs incurred in the Court where the Action was taken and the Court in which the Action should have been taken.

Secondly, though the assessment of damages is not an exact science, in Sinnott -v- Quinnsworth, O’Higgins C.J. held that when determining a figure which is fair and reasonable, “some regard should be had to the ordinary living standards in the country, to the general level of incomes and to the things upon which the plaintiff might reasonably be expected to spend money.”

To that end, and with the words of O’Higgins C.J. in mind, it is prudent to revert to the Judgment of Noonan J. who holds that “damages are, in theory at least, restitutional.”

Date Published: 12th August 2020

Key contacts:

Mary Byrne Partner (mbyrne@obl.ie)

Ruth Hereward Associate Solicitor (rhereward@obl.ie)

This document is for general guidance only and specific legal advice should be obtained as required.