Posted: August 24th, 2020
Following an appeal by defendants Alan Crosby and Mary Vocella, a personal injury compensation award for whiplash injuries sustained in a car accident have been reset to €41,000 by the Court of Appeal in Dublin last week.
Upon further review of the €70,000 compensation award that was approved that the High Court in December 2019, Court of Appeal Judge Justice Seamus Noonan found that the award figured was not representative of the suffering incurred. Justice Noonan did say that plaintiff Emma McKeown had appeared to be an honest person who did not seek to exaggerate her injuries.
Moreover, Justice Noonan was critical of the fact that personal injuries awards can vary greatly depending on the presiding Judge and that this should clearly not be the case, saying “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.”
He added: “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.”
Justice Noonan finished by saying: “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. 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.