HBK Insurance Partners
HBK Insurance Partners

High Court awards €700,000 general damages in personal injury claim

Judge Maureen Clarke awarded a claimant €700,000 in general damages for personal injuries earlier this year. John Savage examines the case in more detail.

We know (from the Maggie Yang Yun judgment in 2009) that the so-called ‘cap’ on general damages was reassessed by Judge Quirke as being €450,000 (€500,000 less a ‘recessionary discount’ of €50,000). Since then there have been a number of cases where general damages have exceeded this but only in sexual abuse cases or libel awards.

In this case, the claimant suffered serious burns over 50% of his body when he was 32. Half of those burns were of full thickness and of a life threatening nature. The burns extended to his face, hands, arms and legs and chest. Necessary skin grafts mean that he now has scarring over 75% of his body. While he is unable to do manual work, he returned to operating his recycling business which continued to grow. He had no claim for loss of earnings into the future and no claim for future care. During his treatment he required significant blood transfusions and he learned during his recovery that one of the donors had been diagnosed with vCJD and had subsequently died of that condition. He has a chance of developing it and the medical experts assess that chance to be between 0.1% and 10%.

There were two interesting points in the case which was heard by Judge Maureen Clarke:

  1. For pain and suffering to date to include mental distress and psychological trauma she awarded €500,000. For pain and suffering in the future, she awarded €200,000. She said that this is a case where the ‘cap’ did not apply since the injuries were not catastrophic.
  2. Before delivering judgment, the judge proposed a novel form of compensation which she said would be fair to both parties. The proposal was that a sum of money could be held in a ring-fenced interest bearing account or a Government guaranteed return bond in the joint names of the defendants’ insurers and the plaintiff’s solicitor for the benefit of the plaintiff should he develop vCJD. If the plaintiff remained free of the disease for 15 years, then the money and interest would revert to the defendants’ insurers and they would suffer no loss. There would be no question of the plaintiff being compensated for an event which did not occur but if the plaintiff was unfortunate enough to develop the disease then the invested sum would represent a form of life insurance which would compensate his family for his early loss.

The defendants were adamant that they would not consent to such a scheme and urged the court to assess damages on the basis of current law which does not allow for the payment of provisional awards.

The award was not appealed. A number of factors influenced the decision not to appeal:

  • • two insurers were sharing the award
  • • an appeal would have taken three years
  • • the outcome of the appeal could have been an order for a re-hearing of the case by the High Court, so there would have been a big exposure to costs.

The decision is consistent with the Maggie Yang Yun decision. Although in that case Judge Quirke says that the ‘cap’ is €450k in catastrophic cases where there will be large elements of special damages…

“Where the award is solely or largely an award of general damages for the consequences of catastrophic injuries there will be no “cap” placed upon the general damages awarded. Each such case will depend upon its own facts so that: (a) an award for general damages could, if the evidence so warranted, make provision for factors such as future loss of employment opportunity or future expenses which cannot be precisely calculated or proved at the time of trial, (b) life expectancy may be a factor to be taken into account and, (c) a modest or no award for general damages may be made where general damages will have little or no compensatory consequence for the injured person.”

John Savage

HBK Insurance Partners