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Published 20 abril 2023
The Judicial Council Guidelines were first introduced on the 21 April 2021. While we still do not have sufficient caselaw to get a true feel of how they are being interpreted across the board, early soundings would suggest that they are being implemented more closely in the High Court, while the judiciary in the Circuit Court have adopted a less consistent approach towards them.
One key decision that does provide us with a helpful insight as to how they Guidelines are being interpreted came in the High Court Judgment of Mr Justice Coffey on the 1 July 2022 in the case of Nicola Lipinski (A Minor) suing by her mother and next friend, Monika Szyszko -v- Martina Whelan (Record No. 2021/ 5774P).
Justice Coffey made a point of referring to Section 99 of the Judicial Council Act 2019 at the outset which provides:
“1. The Court shall, in assessing damages in a personal injury action, a) have regard to the Personal Injury Guidelines (within the meaning of Section 2 of the Judicial Council Act 2019), and b) where it departs from those Guidelines, state the reason for such departure in giving its decision”.
On the 10 December 2019, the Plaintiff, who was fourteen at the time, was making her way to school at St Walston’s Abbey, Celbridge, County Kildare. As she crossed the road which led to the school, suddenly and without warning, the Plaintiff was struck by the Defendant’s vehicle, causing her to fall forward onto a grass verge of an adjacent footpath. Liability was not at issue.
The Plaintiff suffered from, inter alia, the following injuries:
O Post-traumatic stress disorder (PTSD)
O An abrasion to the upper part of the back of her left thigh which left a visible scar
O Soft tissue injury to her back
O Sprain to left wrist
O Contusion injury to left ankle
O Injury to her left hip, which left her with a minor and barely visible area of discoloration.
Justice Coffey noted that the Guidelines set out the procedure or roadmap that a trial Judge must have regard to before making an award.
Firstly, each party must contend what they believe to be the most dominant injury and into which category under the Guidelines that this injury falls. In this instance, it was agreed by all parties that the Plaintiff’s PTSD was the most dominant injury.
The Plaintiff had suffered from persistent nightmares, flashbacks, panic attacks, sleeplessness, etc., as well as poor concentration and demotivation at school which corresponded to a decline in her academic performance. She had recurring thoughts of self-harm which culminated in an act of self-cutting. She had received counselling and future counselling was recommended. At the time of the trial, the expert evidence proffered was that the Plaintiff was only mildly symptomatic and progressing towards a recovery,
The argument arose as to which rubric the injury fell under in the Guidelines.
The Plaintiff’s Counsel contended that it straddled the two categories of moderate PTSD and serious PTSD. The recommended award for moderate PTSD ranges from €10,000.00 to €35,000.00 while serious PTSD rises to €35,000.00 to €80,000.00. The Plaintiff’s counsel argued that the value of the injury fell somewhere between €40,00000 and €50,000.00.
The Defendant’s Counsel contended that the Plaintiff’s injury fell more appropriately within the moderate PTSD category and valued it in the region of €20,000.00.
Mr Justice Coffey noted that serious PTSD was defined as “a category [that is] distinct from [severe PTSD] because of a prognosis projecting some recovery with professional help. However, the effects are still likely to cause significant disability for the foreseeable future”. The moderate PTSD category on the other hand, states that “the injured person will have largely recovered, and any continuing effects will not be grossly disabling”.
In coming to his conclusion, Justice Coffey took into account that while the Plaintiff’s PTSD was persistent for a relatively short time, it had occurred at an important juncture in the Plaintiff’s life and was severely debilitating for her. Justice Coffey put weight on the fact that the Plaintiff had gone from an A to a D student whilst suffering from her PTSD. However, he accepted that the Court did not have contextual evidence from the Plaintiff’s teachers as to whether or not the Plaintiff’s educational difficulties would continue in the long term.
Having considered all the evidence, Justice Coffey was ultimately satisfied that the Plaintiff’s PTSD came within the top end of the moderate category under the Guidelines. He awarded damages of €35,000.00.
In terms of the uplift for the Plaintiff’s multiple injuries, Justice Coffey focused primarily on the Plaintiff’s 12cm long and 2cm wide scar on the back of her thigh. The scar had settled but could not be removed by surgery. Justice Coffey concluded that the scar was a minor cosmetic blemish however, he acknowledged that the Plaintiff considered the scar to be a significant disfigurement.
Taking into consideration the scar and the other minor soft tissue injuries, which subsided after a relatively short period of time, Justice Coffey awarded an uplift of €25,000.00 bringing the overall award to €60,000.00 for general damages.
While more judgments are required in order to allow us offer a more blanket analysis of how the Guidelines are being interpreted, the Lipinski Judgement is useful as it provides us with a particular insight into how Judges might view the Guidelines in the context of psychiatric injuries and importantly, the factors that are considered when calculating the uplift for multiple injuries.
Lipinski is also an example of when Judges abide strictly by the Guidelines in terms of assessing the value of the dominant injury while the value of the uplift for secondary injuries is more nebulous and often relatively substantial which is something to be cognisant of.
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