Payne v Nugent

JurisdictionIreland
JudgeMs. Justice Irvine
Judgment Date10 November 2015
Neutral Citation[2015] IECA 268
Docket NumberCourt of Appeal no.: 2015/67
CourtCourt of Appeal (Ireland)
Date10 November 2015
Margaret Payne
Plaintiff/Respondent
and
John Nugent
Defendant/Appellant

[2015] IECA 268

Ryan P.

Peart J.

Irvine J

Court of Appeal no.: 2015/67

THE COURT OF APPEAL

Personal injuries – Road traffic accident – General damages – Plaintiff seeking general damages for pain and suffering – Whether the general damages awarded were excessive

Facts: The plaintiff/respondent, Ms Payne, on 19th December 2012 at Sundrive Road, Dublin, was travelling as a back seat passenger in a car which was rear ended by a motor vehicle driven by the defendant/appellant, Mr Nugent. The trial judge, having heard the evidence over two days, assessed general damages for pain and suffering to date in the sum of €45,000, pain and suffering into the future in the sum of €20,000 and he then awarded agreed special damages of €2,985. The defendant appealed to the Court of Appeal against that decision and judgment of the High Court dated 15th January 2015. The defendant argued that the general damages awarded both in respect of pain and suffering to date and into the future were excessive and were not within the permissible range having regard to the evidence. In support of that submission he drew the Court”s attention to a number of factors: (i) The plaintiff”s medical condition was entirely managed by her general practitioner and her treatment, from an active perspective, had ended fifteen months post-accident; (ii) Insofar as the trial judge compensated the plaintiff for a psychological injury, the only evidence available to the court apart from that of the plaintiff, was that contained in the report of a consultant psychiatrist, who was retained by the plaintiff”s solicitor not to treat the plaintiff but merely to advise on her condition; (iii) Insofar as there was any ongoing symptomology at the date of trial, he submitted that taking all of the medical reports into account the plaintiff”s injuries were relatively minor given that she was not receiving any ongoing treatment; (iv) He concluded his submission by asserting that notwithstanding the plaintiff”s own evidence and taking into account all of her expert reports, the award made was well outside that which would be acceptable for a soft tissue injury. The plaintiff submitted that the injuries sustained by the plaintiff were significant and that the award made by the trial judge for pain and suffering to date and into the future was well within the appropriate range.

Held by Irvine J that, while she accepted that the damages awarded for pain and suffering must be reasonable having regard to the injuries sustained they must also be proportionate to the awards commonly made to victims in respect of injuries which are of significantly greater or lesser import; modest injuries should attract moderate damages. Irvine J considered the award made by the trial judge to be unduly generous to the point that it strayed outside the parameters which she would consider appropriate for the injuries concerned. She proposed a reduction in the award of the general damages for pain and suffering to date to €30,000. She further proposed that the award for damages for pain and suffering into the future, which on any view of the medical reports was considered likely to be very modest, would be confined to a sum of €5,000.

Irvine J held that she would allow the appeal and, having regard to the agreed special damages, would substitute an award of €37,985 for that made in the High Court.

Appeal allowed.

Judgment of the Court (ex tempore) delivered on the 10th day of November 2015 by Ms. Justice Irvine]
Ms. Justice Irvine
1

This is an appeal against the decision and judgment of High Court (Cross J.) dated 15th January 2015. The proceedings before him on that date concerned a personal injuries claim brought by the plaintiff in respect of a road traffic accident which occurred on 19th December 2012 at Sundrive Road, Dublin. On that occasion the plaintiff was travelling as a back seat passenger in the car which was rear ended by the defendant's motor vehicle.

2

The trial judge having heard the evidence over two days assessed general damages for pain and suffering to date in the sum of €45,000, pain and suffering into the future in the sum of €20,000 and he then awarded agreed special damages of €2,985. It is against that award that the defendant appeals. The appeal made before the court today is a little different from that which was set out in the notice of appeal.

3

To summarise, Mr. Declan Doyle S.C on behalf of the defendant makes the fairly straightforward argument that the general damages awarded both in respect of pain and suffering to date and into the future were simply excessive and were not within the permissible range having regard to the evidence. In support of that submission he has drawn the court's attention to a number of factors.

(i) The plaintiff's medical condition was entirely managed by her general practitioner, Dr. Donoghue and her treatment, from an active perspective, had ended in March 2004 — fifteen months post accident.

(ii) Between March 2004 and the date of the trial the plaintiff did not receive any treatment for her back injury.

(iii) He refers to the fact that while the plaintiff also sustained a neck and shoulder injury this was one which, having regard to the evidence, had cleared within a period of seven months.

(iv) Insofar as the trial judge compensated the plaintiff for a psychological injury, the only evidence available to the court apart from that of the plaintiff, was that contained in the report of Dr. Cumiskey, consultant psychiatrist, who was retained by the plaintiff's solicitor not to treat the plaintiff but merely to advise on her condition.

(v) Insofar as there was any ongoing symptomology at the date of trial, and he does not dispute that the plaintiff was still then symptomatic, he submits that taking all of the medical reports into account the plaintiff injuries were relatively minor given that she was not receiving any ongoing treatment

(vi) He concluded his submission by asserting that notwithstanding the plaintiff's own evidence and taking into...

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26 cases
  • Pop v C. Morton and Sons Ltd
    • Ireland
    • High Court
    • 27 Octubre 2016
    ...at the sum which I award for general damages, I have had regard to the guidelines laid down by the Court of Appeal in Payne v. Nugent [2015] IECA 268; Nolan v. Wirenski [2016] IECA 56; and Shannon v. O'Sullivan [2016] IECA 93. I have also had regard to the general guidelines as set out in t......
  • Kampff v Minister for Public Expenditure and Reform
    • Ireland
    • High Court
    • 25 Junio 2018
    ...principle") was expanded upon by the Court of Appeal in Murphy v. County Galway Motor Club [2016] IECA 106 and in Payne v. Nugent [2015] IECA 268. The mechanics of ensuring that awards are proportionate to the "cap" 76 In County Galway Motor Club case at para. 19, the Court of Appeal focu......
  • Woods v Tyrell
    • Ireland
    • High Court
    • 24 Junio 2016
    ...general damages in a non-cap case’. 53 With this in mind, I consider the recent decisions of the Court of Appeal in Payne v. Nugent [2015] IECA 268, Nolan v. Wirenski [2016] IECA 56, and Shannon v. O'Sullivan (Unreported, 18th March, 2016). 54 The decision of Payne v. Nugent does not refer ......
  • O'Connell v Martin; Ali v Martin
    • Ireland
    • High Court
    • 10 Mayo 2019
    ......v. S.M. [2005] 4 I.R. 461 ) and thus proportionate to the cap on damages so as to avoid the “concertina effect” ( per Irvine J. in Payne v. Nugent [2015] IECA 268 ). It is clear from Payne v. Nugent that the “concertina effect” is the unfairness which would result if ......
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