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THE HIGH COURT

[2019] IEHC 914

[2017 No. 1 C.T.]

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 5 (15) OF THE HEPATITIS C

COMPENSATION TRIBUNAL ACT, 1997, AS AMENDED

AND

IN THE MATTER OF AN APPEAL BY B. D.

AND

IN THE MATTER OF A DECISION OF THE HEPATITIS C AND HIV COMPENSATION

TRIBUNAL OF THE 30TH MARCH, 2017, REFERENCE 1685/97

BETWEEN

B. D.

APPELLANT

AND

THE MINISTER FOR HEALTH AND CHILDREN

RESPONDENT

JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 19th day of January, 2019

1. These proceedings come before the Court by way of an appeal from a decision of the

Hepatitis C and HIV Compensation Tribunal (“the Tribunal”) delivered on the 30th March,

2017, whereby the Appellant was awarded €150,000 in general compensation and

€50,000 in respect of pecuniary loss for the consequences of decompensated cirrhosis of

the liver caused by the Hepatitis C Virus. (HCV). The Appeal is brought pursuant to s. 5

(15) of the Hepatitis C Compensation Tribunal Acts 1997-2006 (“the Acts”).

2. The grounds on which the Appellant, B.D, seeks a variation of the award are that it fails to

fairly and reasonably reflect the devastating consequences which decompensated cirrhosis

has had and will continue to have on every aspect of his life, including the foreshortening

of life itself and the probability that he will develop Hepatocellular Carcinoma. He also

seeks a variation of the pecuniary loss award on the grounds that the amount thereof was

perverse and was founded on an erroneous understanding and application of the law by

the Tribunal. The Court will allow the appeal for the reasons that follow.

3. It is accepted by the Minister that B.D is entitled to an award for his pecuniary and non-

pecuniary loss; in controversy, however, is the quantification of the loss. The Appeal

raises important matters of principle and law regarding the assessment of compensation.

In the interest of a comprehensive understanding of the issues it is necessary that these

are placed in the factual context on foot of which they arise.

Background

4. B.D. was born on the 17th October, 195 and resides with his wife and family in the

midlands. The couple married in 1990 and have three children, a boy and two girls. The

boy was born in August 2006, the eldest girl in April 2009 and their younger sister in

December 2012. The two girls were born with Down Syndrome and have special needs.

In October 1978, the Appellant was diagnosed with Crohn’s disease, a condition which

was successfully treated by the late Professor Fielding; the Court is satisfied that the

consequences of this condition have no implications for the issues which fall for

determination on the appeal.

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5. On the 17th March, 1981, B.D. was admitted to Portlaoise Hospital suffering from

complications associated with his Crohn’s disease. In the course of treatment, he was

transfused with three units of blood and subsequently, in January 1982, he was re

admitted to hospital where he underwent a right hemicolectomy. Very unfortunately for

the Appellant one or more of the transfused units was contaminated with the Hepatitis C

Virus (HCV), genotype 3. At all times after the introduction of Polymerase Chain Reaction

testing (PCR), his samples were found to be positive for the virus. As a consequence of

the infection he developed serious liver disease which was progressive and in 2014 he

was diagnosed with decompensated cirrhosis; he was by then a very ill man in need of

urgent medical treatment.

Vocational Background

6. The Appellant left school in 1976 with a good Leaving Certificate. He commenced

employment almost immediately with Zetor Ireland, processing guarantee claims. He

subsequently secured the position of credit controller with Lombard and Ulster Bank

before moving two years later to the Leinster Express newspaper where he remained

employed until 1983. Following a short period of unemployment, he joined Avonmore

Foods as a credit control and sales manager where he became intimately involved in the

expansion of the creameries division of the business; the company ultimately merged

with Waterford Foods to form the Avonmore group of companies.

7. Had it not been for the consequences of the infection, B.D. would almost certainly have

been promoted to the position of group National Sales and Distribution Manager; his

illness began to impact on his ability to function in the late 1980’s. Although the limiting

effects of the disease were gradual he came to accept that he would not be able to cope

with the additional demands which come with promotion and when offered the position of

National Sales Co-Ordinator for the Liquid Milk Division of the group in 1990, he declined

on health grounds. The corresponding worsening of symptoms, particularly fatigue, as the

disease progressed resulted in a gradual reduction of working hours, initially to three days

a week, until the deterioration in his health forced the Appellant to retire in January 1998,

shortly before the first tribunal hearing.

8. Had he been able to take up promotion in 1990, it is clear from the evidence that the

new position would have involved an increase in the number of meetings he would have

had to attend at different plants and sites throughout the country with a consequential

impact on the amount of time spent away from home. As will be seen later this has an

implication for the future child care claim, particularly in circumstances where his spouse

is a full time career civil servant. Mrs D holds a master’s degree in governance and holds

a senior position in a government department. Circumstances require her to leave the

family home between 6.30 and 7 am on weekdays. She works long hours and on those

evenings when she returns home it is rarely much before 8pm; her duties often require

her to work late and stay overnight in Dublin, when this occurs she stays with her sister.

Now 51, she is not due to retire until she reaches the age of 65.

Implications of Vocational Commitments on Childcare

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9. Had it not been for the awful consequences which his illness has had on every aspect of

the Appellant’s life, it appears highly likely he would have enjoyed a stellar career in one

of the country’s largest corporate entities, a path along which his wife has already

travelled in her own career. Although they now have three children the couple

experienced difficulty starting a family; their first child was not conceived until 2005,

following IVF treatment. Having regard to the impact promotion would likely have had on

the time available to look after his children, as it has had on the time available to his

spouse, in circumstances where both parents were pursuing their respective careers full

time, it is probable that the Appellant and his wife would have had to retain carers to

meet the bulk of their children’s care needs, particularly during the working week.

10. In this regard I consider it to be of some significance in relation to the claim for

pecuniary loss that there was no convincing evidence one or other of the parents would

have abandoned or modified their careers to look after their children either on a full time

or part time basis, particularly after the birth of the children with special needs. Taken at

its height the only direct evidence in relation to this matter was B.D.’s assertion he would

have done whatever was necessary to look after his children while working and in that

regard, had he secured promotion, he believed he would most likely have been facilitated

by his employer.

11. Mrs. D did not give evidence to the Tribunal or the Court nor was she interviewed by

Nurse Kirby for the purposes of the report which she prepared and on foot of which the

capitalised claim for the cost of future child care was based. In all the circumstances the

only reasonable conclusion which the Court can reach on the evidence is that but for the

Appellant’s illness both parents would most likely have remained in full time employment.

First Application to the Tribunal

12. The Appellant made an application to the Tribunal for pecuniary and non-pecuniary losses

in 1998. There were no children in being or expected at that time. Accordingly, the

pecuniary loss claim was confined to past and future loss of earnings and other

employment related pecuniary benefits together with future medical, travel and

subsistence costs. The loss of earnings claim was based on the premise that but for his

illness B.D. would have been promoted to the position of National Sales Co-Ordinator in

1990, at a gross salary of £40,000 or £47,000 per annum. The capital value of this claim

to age 65 was calculated at £397,133 or £463,406 depending on the level of gross salary

paid.

13. The application was heard on the 25th November and evidence was given by B.D., the

late Professor John Fielding, Paula Smith, Vocational Consultant, and Nigel Tennant,

Consulting Actuary. The Tribunal made the award of general compensation provisional

upon certain serious consequences in respect of the occurrence of any of which the

Appellant was given liberty to return to the Tribunal to have further compensation

assessed. As required by s.5 (7) of the Acts, these consequences were identified in the

award as follows;

(i) Progression of liver disease to decompensated cirrhosis, and/or

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(ii) The development of Hepatocellular Carcinoma.

Award

14. With regard to his pecuniary and non-pecuniary losses, the Tribunal awarded a total of

I.R.£647,000 compensation consisting of (i) £120,000, general compensation (ii) £50,000

for past loss of earnings; (iii) £350,000 for future loss of earnings, allowance having been

made for Reddy v. Bates ([1984] I.L.R.M. 197) contingencies; (iv) £75,000 for loss of a

company car and (v) £52,000 for loss of pension benefits and reduction in the level of the

death in service benefit; the award was accepted.

Family Circumstances post Award; Progression of Liver Disease;

15. Following the birth of her first child in 2006, the Appellant’s spouse was seconded to

Brussels in 2007. She was joined by her husband and son shortly afterwards and the

family resided there for a number of years until her posting came to an end. During that

time ‘au pairs’ were employed to help with child-minding, though not out of necessity

attributable to any inability on the part of the Appellant; relatively speaking although not

well enough to work he was still involved in family life at that time. Mrs. D continued to

work as a public servant after her return home, initially in the midlands until 2016 when

she secured a further promotion that necessitated her having to travel to work in Dublin.

This change in circumstances has had and will continue to have an impact on her ability

to care for her children during the week and is likely to remain a feature in the family

circumstances until her retirement.

16. The Appellant comes from a farming background. The family now live in a four-bedroom

house in the cartilage of which there are outbuildings and a large garden together with 30

acres of farm land. After his retirement, B.D. occupied himself by helping out on his

brother’s farm and by attending to small chores around the house, cutting the grass and

tending to his vegetable garden. His participation in family life gradually diminished as his

symptoms, particularly fatigue and depression, worsened; by the mid 2000’s his general

health had deteriorated to the point where he began to experience recurrent infections.

17. In August 2009, he was admitted to the Midland Regional Hospital with viral

Pneumonitis/Interstitial Pneumonia and was also diagnosed with Paroxysmal Atrial

Fibrillation. His CT scan showed portal hypertension with an enlarged spleen and dilated

portal tracks within the abdomen suggestive of liver cirrhosis. Liver function tests were

also abnormal. In November 2009, he came under the care of Professor Aiden

McCormack, Consultant Hepatologist. He reviewed the Appellant on a number of

occasions over the following two years.

18. Blood tests during this period confirmed ongoing infection and deterioration in liver

function; the viral load for Hepatitis C in a sample taken on the 10th January, 2011 was

187996 IU/ml. The signs of deterioration were clinically apparent. In addition of chronic

fatigue the Appellant developed jaundice, a further indication of a serious progression of

the disease which called for urgent medical intervention. Anti-viral therapy was

recommended but was contraindicated due to the development of significant

psychological difficulties; treatment had to be deferred.

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19. The deterioration in the severity of symptoms, particularly fatigue, which accompanied

progression of the disease impacted negatively on the Appellant’s capacity to function and

he became ever more depressed and despondent; depressive episodes of increasing

frequency became a feature of life. He eventually became suicidal and in September

2011, had to be admitted to St. John of God’s Hospital under the care of Dr Abby Lane,

Consultant Psychiatrist. He was treated appropriately and was well enough to be

discharged after 6 weeks as an inpatient on increased anti-depressant medication. Dr

Lane diagnosed an Adjustment Disorder with recurrent depressive episodes of varying

intensity; the Appellant remains on anti-depressant medication.

20. In her report dated 12th November, 2016, Dr Lane expressed the opinion that Hepatitis C

had had a profound effect on B.D’s mental health. At assessment his speech was slow,

he had difficulty with names and words and gave the appearance of a beaten man; he

remained somewhat depressed. This assessment has significance in the context of the

claim for general compensation since it took place after the completion of a successful

course of anti-viral therapy which resulted in clearance of the virus. As will be seen later,

while clearance of the virus has resulted in a qualitative improvement in life expectancy

and in the symptoms of decompensation relative to his dire pre-treatment prognosis, B.D.

remains a comparatively ill man with a very poor quality of life.

Decompensated Cirrhosis; Diagnosis

21. From 2009, the degree of deterioration in liver function was such that by 2014, the signs

of decompensated cirrhosis were manifest. A CT scan of the liver and a gastroscopy

carried out on the 28th May, 2014 disclosed cirrhosis with multiple calcified gallstones and

small distal right oesophageal varices; liver function tests were grossly abnormal. There

was an even more urgent need for medical intervention. Given the improvement in his

psychological status which followed the treatment afforded by Dr Lane, the Appellant was

referred for assessment to Dr Diarmuid Houlihan, Consultant Hepatologist, with a view to

undergoing antiviral treatment.

22. At consultation on the 17th September, 2015, he noted that B.D. was exhibiting memory

and concentration difficulties and his speech was slurred; he was also complaining of

sleep disturbance. The clinical impression was of Grade 1–2 (A-B) Encephalopathy,

consistent with the Appellant’s biomechanical profile; a low platelet count and an albumin

reading of 30. Prognosis without successful antiviral treatment was for liver

transplantation with 50% mortality within two years.

23. There are well documented risks, including death and other side effects, associated with

the treatment which was communicated to the Appellant in what Dr. Houlihan described

as a ‘very frank conversation’. Given the stark choice, he decided to proceed and

commenced Direct Acting Antiviral (DAA) therapy in September, 2015, successfully

completing the course 24 weeks later on the 25th February, 2016.

Second Application to the Tribunal

24. Having progressed to decompensated cirrhosis, B.D. was entitled to return to the Tribunal

on foot of the provisional award. His application was heard on the 8th February, 2017. In

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addition to the Appellant, Dr Diarmuid Houlihan, Dr Abbey Lane, Dr Vivek Mahadev, G.P.,

Mrs. Jo Campion, Clinical Psychologist, and Mr. Nigel Tennant, gave evidence. A care

report prepared by Nurse Kathy Kirby, (5/12/16) together with an addendum (7/2/17)

was admitted in evidence. Medical reports were prepared for those proceedings by Dr.

Houlihan (11/11/15 and 5/9/2016) by Jo Campion (26/4/16) by Dr Lane (12/11/16) and

by Dr Mahadev, (14/11/16). An actuarial report was prepared by Nigel Tennant (6.2.17).

These reports, which were admitted in evidence before the Tribunal and on the Appeal,

have been read and considered by the Court.

25. The claim for pecuniary loss on the return application included claims for (i) Domestic

assistance, (ii) A gardener, (iii) DIY, decorating and home maintenance and (iv) Case

management. Depending on the assumption used, the cumulative capital value of these

heads of claim was calculated at €638,783 or €736,866. Since 2005 B.D. has been in

receipt of a monthly homecare allowance from the HSE for his own care and assistance.

Following the deterioration in his health status, the hours allowed for his care increased

from 24 to 42 per week in respect of which he receives a payment of €2,493 per month.

The capital value of the care allowance payment, depending on the assumption used, was

calculated at €610,075 or €702,650.

26. Having regard to the capital values of the care allowance, it was indicated at the outset of

the hearing before the Tribunal, as it was on the Appeal, that the Appellant was not

preceding with the four heads of claim in respect of his own care and assistance. For the

same reasons the claim for past care was also withdrawn. In the course of the hearing an

issue arose as to whether the Appellant was incurring expense under these headings and

if not whether credit fell to be given against the child care claim. The Court ruled that the

Appellant was entitled to proceed as indicated, payments received from the HSE being for

his own care and not that of his children.

27. In the event, the pecuniary loss claim was limited to the cost of providing future care for

the three children. The claim was based on the premise that but for the deterioration in

his liver disease to decompensated cirrhosis, the Appellant would have been in a position

to look after the care needs of his children. Instead, it has been necessary to retain the

services of a nanny whose services will be required until the youngest child reaches the

age of 18 from which time it was claimed a live-in carer would be required.

28. The capital value of these two claims, depending on the assumptions of standard

mortality or mortality improvements, was calculated at €792,365 or €958,085. A claim

was also advanced for 33.5 hours per week additional care which the nanny would not be

in a position to provide for the children in respect of certain activities and requirements

set out in the addendum to the report of Ms. Kirby, the capital value of which was

calculated at €709,000.

Award: General Compensation

29. The Tribunal delivered its decision on the 30th March, 2017. Allowing the claim for non-

pecuniary losses the Tribunal determined that “…the Applicant is being compensated

today for the pain and suffering that can be attributed to his past deterioration, his

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probable future deterioration and specifically for past and future decompensated cirrhosis.

Associated encephalopathy, associated mental and emotional effects and also probable

future hepatocellular carcinoma. For this the Tribunal awards the Applicant €150,000.”

30. The award was made provisional on six eventualities which included deterioration

necessitating liver transplantation, the cost of transplantation in Ireland or the UK,

together with all ancillary costs, disorders of the lymphatic system, including lymphoma

and all leukaemia disorders, and/or terminal care costs associated with Hepatitis C, the

occurrence of any of which entitled the Appellant to return to the Tribunal.

Award: Pecuniary Loss Claim

31. It is evident from the transcript of its decision that in approaching the claim for pecuniary

loss the Tribunal was guided by the precept that illogicality, inconsistent awards and

double compensation is not permissible and must be avoided. Accordingly, when carrying

out the assessment of the future care costs claim regard was had to the amount for

future loss of earnings in the sum of IR£350.000 comprised in provisional award, based

as it was on the premise that but for his injuries B.D. was likely to have pursued a career

in corporate sales until an expected retirement at age 65.

32. The Tribunal considered that it also followed necessarily that the claim could only be for a

portion of the total childcare costs the Appellant was required to bear and for no more

than the effect which his injuries would have “…on his capacity as a co-parent to care for

his children in the hours he would have had available to discharge that care himself if also

engaged in a fulltime career until 65 years.” Noting the appropriateness of the Reddy v.

Bates (supra) deduction for contingencies in the provisional award at 30%, the Tribunal

decided that “in the special circumstances of the case, however, … the applicant is

entitled to be compensated for the effect his deteriorated condition has had and will have

on his ability to provide the childcare he would otherwise have provided himself within the

legal and factual context of this case,” on foot of which finding it made the award of

€50,000.

33. In reaching its decision, the Tribunal identified a number of matters to which it had regard

including the following:

(i) The responsibility borne by the Appellant’s spouse for the care of the children,

(ii) The increased weekly care allowance received from the HSE,

(iii) The services and supports which the Appellant may be expected to receive into the

future under the Acts or equivalent legislation,

(iv) The fact that the capital value of the claim was based on the assumption of a

normal or standard mortality whereas on the medical evidence there was a

probability of further severe progressive deterioration in the condition and a

consequential diminution in life expectancy.

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34. On an appeal this Court is not concerned with a review of the reasoning and decision of

the Tribunal since it follows from the provisions of the Acts and the regulations that an

appeal from a decision or order of the Tribunal to the High Court proceeds de novo.

Nevertheless, I pause to observe here that in assessing the claim for future child care

costs the Court has necessarily taken a different approach to that of the Tribunal in a

number of important respects.

35. It is evident that the Tribunal took account of benefits which are not, in my view,

assessable on a claim for the cost of child care since these are paid to or are received by

B.D. for his own care and not for the care of his children. Moreover, discounting the

capital value of the claim to reflect the probable diminution in life expectancy penalised

him in respect of a loss caused by the infection for which he is entitled to be

compensated. For completeness, I should add that as the appeal proceeds de novo, the

onus of proof rests on the Appellant to establish his claim on the balance of probabilities

in accordance with the ordinary rules of evidence.

Evidence on Appeal

36. All of the evidence available to the Court was adduced by or on behalf of the Appellant.

Evidence as to fact was given by B.D., his sister O.D. and S.H. a nanny who has been

employed to care for the children since the hearing before the Tribunal. Expert evidence

was given by Dr. Diarmuid Houlihan, Mr. Nigel Tennant, Nurse Kathy Kirby, and Ms. Jo

Campion. As mentioned previously the expert reports prepared by these witnesses and

the report from the Appellant’s GP were admitted in evidence and have been read and

considered by the Court.

37. When B.D. was assessed by Dr Houlihan in September 2015, he exhibited the signs of

marked encephalopathy. The synthetic function of his liver was markedly deranged and

prior to starting antiviral therapy he was classified as having Child-Pugh B Cirrhosis. (The

Child-Pugh score or grade is a system of classification developed by Child and Pugh in the

1970s to assess the prognosis in cirrhotic patients where each patient is assigned a

grade, A, B or C depending on degree of severity). Medical prognosis was extremely poor

and, as we have seen, in the absence of successful anti-viral treatment, his chance of

requiring liver transplantation or of death occurring within two years was estimated at

50/50.

38. The marked risks associated with anti-viral therapy referred to earlier include further

deterioration in the condition of the liver and death, risks which were heightened for B.D

due to the prolonged course of the treatment (24 weeks instead of 12), necessitated by

the virus he had contracted, genotype 3. Although he tolerated the treatment it was not

without personal cost in the form of very severe side effects. The symptoms of fatigue,

despondency, depression, anxiety, low self-esteem and encephalopathy were all

magnified or aggravated, a price B.D. considered worth paying.

39. Success is relative and in the particular circumstances of this case is best measured by

the practical consequences of the treatment. Of the positive outcomes the most

significant are: (i) an improved biomechanical function of the liver which has resulted in a

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reclassification of the cirrhosis from Child-Pugh B to A; (ii) an improved mortality an 80%

to 90% chance of ten year survival from two years and (iii) a significantly reduced risk of

developing lymphoma.

40. Nevertheless, while the progression and worst effects of the decompensation have been

halted, B.D. is left with permanent and irreversible liver damage which continues to

impact negatively on his wellbeing and capacity to function, particularly his ability to care

for himself and his children. Apart from short distances, he no longer drives a car and

when he does so is generally accompanied. Indeed, whether he should be driving at all is

now open to question. Fatigue, depression, anxiety, and low self-esteem remain features

of a life complicated by encephalopathy, described by Dr Houlihan as a “low grade brain

fog”, caused by toxins in the blood which would otherwise be cleared in an individual with

a healthy liver.

41. Indeed, it was manifest from the way in which he gave evidence that the Appellant was

having difficulty with memory and concentration. Although slurring of speech was not

evident, as it had been on medical assessment, there were occasions where he seemed to

have difficulty articulating his thoughts; he conveyed the impression of a man who is daily

oppressed by the impact which the awful consequences of the illness has had on every

aspect of his life. Worried by what the future may hold and how his children will be cared

for, he cut a rather sad figure consistent with ongoing depression. It was quite apparent

that he found having to come to Court and having to give evidence far more than a great

inconvenience: it was very evidently a personal ordeal.

42. Turning to the future, while the clearance of the virus has undoubtedly halted the

progression of the decompensation and has resulted in an improvement in the bio-

mechanical profile of his liver pro tem, transplantation remains a possibility. Furthermore,

while it is now highly unlikely that lymphoma will occur, there is a very real risk that

Hepatocellular Carcinoma and/or further decompensation will develop within the next

decade. While expressing the hope that he may experience some further symptomatic

improvement in the meantime, Dr. Houlihan was at pains to stress that the Appellant’s

quality of life remains and is likely to remain very poor, an opinion corroborated by Ms.

Campion.

Conclusion

43. I accept the evidence adduced by and on behalf of the Appellant and the Court finds that

the combination of ongoing psychological and physical sequelae as a consequence of

decompensated cirrhosis has had and as a matter of probability will continue to have a

devastating effect on every aspect of his life rendering him very substantially, though not

completely, incapable of meeting and providing for the care needs of his children.

Assessment of General Damages / Compensation: The Law

The Appellant’s Submissions

44. In summary, Mr Fitzpatrick submitted that in all the circumstances of the case a

substantial increase in the sum for general compensation ought to be made if the award

was to fairly and reasonably reflect the magnitude of the Appellant’s injuries and in this

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regard he cited the decision of this Court in A.M. v. Minister for Health and Children

[2015] IEHC 660, where an award of €150,000 general compensation for decompensated

cirrhosis on a return application was increased to €250,000.

The Respondent’s Submissions

45. On behalf of the Minister, Ms Gayer S.C. submitted that there was no proper basis to

disturb the award of the Tribunal, quite the contrary. There had been recent decisions of

the Court of Appeal in which principles to be applied to the assessment of damages in

personal injury actions had been enunciated on foot of which general damages had to be

‘recalibrated’ having regard to a maximum figure for ‘pain and suffering’ set at or about

the amount for general damages in catastrophic injury cases to which a limit or ‘cap’

applied (‘cap’ cases). In short, damages in any given case had to be measured or

benchmarked against a maximum figure on a notional scale which terminated in or about

the ‘cap’ amount. In support of this proposition, the attention of the Court was drawn to

number of authorities including Nolan v. Wirenski [2016] 1 I.R. 461, Payne v. Nugent

[2015] IECA 268 and Shannon v. O’Sullivan and others [2016] 1 IR 313.

46. Furthermore, it was contended that where the Tribunal, or the High Court on appeal, was

carrying out an assessment of compensation in respect of serious consequences identified

in a provisional award, the application of the principals of tort law as modified by the Acts

necessitated regard being had to the heads of loss and amounts of compensation

comprised in the provisional award, if any, to ensure no element of double recovery would

arise, whether in respect of pecuniary or non-pecuniary loss. In this regard, the Court was

referred to the recent decision of the Court of Appeal in L. O’S v Minister for Health and

Children [2017] IECA 7.

Conclusion

47. Implicit in the first of these submissions is the proposition that Nolan v. Wirenski (supra),

Payne v. Nugent (supra) and other recent decisions of the Court of Appeal laid down

principles the object or purpose of which was to ‘recalibrate’ downwards the level of

general damages (emphasis added), a view which appears to have gained some traction

not only amongst personal injury practitioners but also amongst some members of the

bench best exemplified in Kampff v. Minister for Public Expenditure and Reform

[2018] IEHC 371, where it was also decided that the ranges of damages in the Book of Quantum,

if being relied on by the court, also fell to be ‘recalibrated’ downwards, the ranges having

been drawn up before, and thus not reflective of, the more recent decisions of the court.

48. For reasons which are set out in O’Hara v. Minister for Public Expenditure and Reform

[2018] IEHC 493, it seems to me on authority that the entire premise on which Kampff v.

Minister for Public Expenditure (supra), appears to be founded, leading as it has to the

conclusion that the levels of general damages in personal injuries actions must be

reduced or assessed at a lower level, is mistaken. At the heart of this proposition is the

factually erroneous assertion that the maximum amount which may be awarded or should

be awarded for general damages in actions for personal injury is a figure in or about the

“cap” or limit on general damages in cases involving catastrophic injury where there is a

substantial claim for pecuniary loss.

Page 11 ⇓

49. While no issue arises in this case on the applicability or otherwise of the ‘cap’ in relation

to the level of general compensation, it appears to me that an integral part of the

proposition which is being advanced is that, within the legal scheme of awards for other

personal injuries, the ‘cap’ amount is the upper bench mark against which the principle of

proportionality is to be applied: in short, the level of award in any given case must be

proportionate to the so called ‘cap’ amount, currently in a range of €450,000 to

€500,000. It follows that the award to be made by the Court on this appeal must be

proportionate within a scheme of awards for general damages where that figure is the

upper limit.

50. I cannot accept this proposition since not only does it fail to properly reflect the relevant

jurisprudence on the matter but also because to do so would necessitate the exclusion of

awards in very serious personal injury cases to which the ‘cap’ does not apply from the

scheme (non ‘cap’ cases), where, as we shall see, the level of general damages may

exceed the ‘cap’ amount. Nor can I accept the proposition advanced on behalf of the

Minister that the object, purpose or intention of the principles enunciated in Kearney v.

McQuillan [2012] 2 ILRM 377, Nolan v. Wirenski (supra), and Payne v. Nugent (supra),

relied on in Kampff v. Minister of Public Expenditure (supra) was to recalibrate downwards

the level of general damages in personal injuries actions; scrutiny of those decisions

warrants a quite different conclusion.

51. There is nothing new about the principles which are to be applied to the assessment of

general damage nor is there any basis to suggest that the Court of Appeal has adopted a

policy and embarked on a mission the object of which is a reduction in the level of awards

for personal injuries in general, quite the contrary. In any event, as was made clear by

the court in Russell v. HSE [2015] IECA 236, the jurisprudence on the subject does not

admit a public policy approach to damages.

52. About this there is no ambiguity, delivering the unanimous judgment of the court in

Shannon v. O’Sullivan (supra), the learned judge expressly rejected the proposition, also

advanced in that case and stated, when referring to Nolan v. Wirenski (supra) and Payne

v. Nugent (supra), “Those decisions do no more than clarify the principles to be applied

and the proper approach to be taken by the trial judge when making an award for

damages for personal injuries so as to ensure that the award made is just, equitable and

proportionate.” Furthermore, it is abundantly clear from a careful reading of the

judgments in these decisions that there were particular case specific reasons why the

appeals were allowed and the quantum for general damages reduced.

53. By way of example, in Nolan v Wirenski (supra), the Court found that the trial judge had

made two erroneous findings, the effect of which would have been to significantly

increase the award of damages to which the Plaintiff would otherwise have been entitled

in law. Commenting on the objective of these principles in that case, Irvine J. stated, at

para 31, “Principle and authority require that awards of damages should be (i) fair to the

plaintiff and the defendant; (ii) objectively reasonable in light of the common good and

social conditions in the State; and (iii) proportionate within the scheme of awards for

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personal injuries generally. This usually means locating the seriousness of the case at an

appropriate point somewhere on a scale which includes everything from the most minor

to the most serious injuries.” (emphasis added).

54. Notwithstanding this statement, the court went on to hold that the upper end of the scale

should terminate at approximately €450,000 (the maximum amount for general damages

in cases involving catastrophically injured Plaintiffs to which the ‘cap’ applied), even

though the court had also recognised, as it has done in other decisions, that there are

cases in which higher awards have been made. The legal foundation upon which awards

in non ‘cap’ cases are not to be included within the ambit of a notional scale is not

explained in the judgments, a significant lacuna which, it appears to me, deserves

examination.

Proportionality; Notional Scale; Measurement of Damages

55. The concept of proportionality within the scheme of awards for personal injuries has long

been accepted as an essential component in the assessment of general damages. See

McGrath v Bourne (1876) I.R. 10 C.L. 160; Foley v. Thermocement Products Ltd (1954)

90 I.L.T.R. 92; Rossiter v Dun Laoghaire Rathdown County Council [2001] 3 IR 578; and

Kearney v McQuillan (supra). However, correctly understood, if the measurement of

general damages in any given case is to involve positioning on a notional scale at the top

of which is a maximum amount it would seem to follow that the appropriate figure must

be one which necessarily reflects the whole spectrum of awards and not just the amount

in cases to which the ‘cap’ applied, particularly as the quantum in non ‘cap’ cases, may

exceed, occasionally by a very considerable sum, the ‘cap’ amount.

56. Accordingly, to exclude from the range of the notional scale non ‘cap’ cases where awards

may exceed the ‘cap’ amount would result in the introduction of an artificially lower limit

or level against which to apply the principle of proportionality, a consequence which, in

my judgment, is neither warranted in principle or by law. See the decision and very useful

observations of Cross J. on this topic and on the ‘cap’ in general in Woods v Tyrell

[2016] IEHC 355 at para 29 et seq.

57. Indeed, inherent in the consequential distortion of the range of general damages for

personal injuries and thus the scale which would result from setting the maximum tariff at

or about the ‘cap’ amount is the risk of working an impermissible injustice on a deserving

Plaintiff through a lower award than would otherwise obtain if the principle of

proportionality was applied to a notional range of damages where the upper end figure

reflected awards for general damages in non ‘cap’ cases that exceed the ‘ cap’ amount;

such a scale would fully and properly reflect “…everything from the most minor to the

most serious injuries.” (emphasis added). In this regard the potential for an award of

general damages in a non ‘cap’ case to exceed the prevailing ‘cap’ by a very considerable

sum is not to be discounted or underestimated; by way of example see A.B. v. B.C and

Anor [2011] IEHC 88, a non ‘cap’ case where general damages for very serious but not

catastrophic personal injuries were assessed at €700,000, together with special damages

of € 75,478.

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58. The plaintiff suffered horrific burn injuries in a fire which resulted in dreadful sequelae

including excruciating pain and permanent scarring to 75% of his body and left him

permanently and profoundly affected. Although unable to do the manual work he did prior

to the fire, the plaintiff was able to continue at work and earn a living, moreover, he did

not require ongoing medical care nor did he require nursing care. Nevertheless, it is

abundantly clear from the judgement that Clark J. had no difficulty in arriving at the

award given the consequences of the wrong for the plaintiff in respect of which

compensation could properly be recovered.

Conclusion

59. In my judgment, if a notional scale is to be a constituent part of an overall scheme of

awards for general damages in personal injury cases where the court is also required to

take into consideration the appropriate ranges of damages, if provided in relation to the

case, set out in the Book of Quantum, (s. 22 of the Civil Liability and Courts Act 2004),

and distortion of the scale to which the principle of proportionality is to be applied in the

course of an assessment is to be avoided, the scale must necessarily reflect the total

spectrum of awards for general damages in personal injury cases, including awards in non

‘cap’ cases where the ‘cap’ amount is exceeded.

60. It appears that the rationale underlying the introduction of a limit or ‘cap’ on general

damages in certain types of case and the difference between those cases and non ‘cap’

cases as well as the consequences which flow from the difference are not always

appreciated or fully understood and may explain why the ‘cap’ amount has come to be

considered, in some decisions, to be the maximum which can be awarded for general

damages for personal injuries. The apparent confusion or ambiguity over whether or not

the ‘cap’ was applicable to all personal injury cases was expressly recognised by

Geoghegan J. in Gough v. Neary [2003] 3 IR 92 at 132.

61. Notwithstanding the succinct clarification set out in his judgment, subsequently adopted

by Quirke J. in Yang Yun v. MIBI [2009] IEHC 318 and Irvine J in J.R. v. Minister for

Health and Children, High Court, Unreported, 24th February, 2011, a conflation between

‘cap’ and non’ cap’ cases regarding the maximum amount of general damages which may

be awarded for personal injuries persists in some decisions; why this should be so given

the clear statements in these decisions is puzzling and merits examination, albeit at the

cost of lengthening this judgment.

62. Following a considered review of the relevant authorities it seems to me that the factors

that distinguish these types of case best explain how and why awards of general damages

in non ‘cap’ cases, such as A.B. v. B.C. (supra), may be assessed at a level which exceeds

the ‘cap’ amount. The route to a clear appreciation of the differences and the impact on

and the implications for the assessment process which flow from them commences with

the nature and meaning of damages.

The Meaning and Nature of Damages / Compensation

63. ‘Damages’ is a descriptive legal term for a sum of money payable by a wrongdoer to the

victim of the wrong and when utilised in the context of personal injury actions means the

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compensation assessed by the court to cover the past, present and prospective losses

suffered or likely to be suffered by the Plaintiff as a consequence of the wrong. It is for

this reason that words such as ‘compensation’ or ‘financial award’ are used in legislation

establishing statutory schemes for the provision of financial redress to victims of

wrongdoing where the State is a not a wrongdoer though made responsible to meet the

award such as the Garda Siochana (Compensation) Acts, the Hepatitis C and HIV

Compensation Tribunal Acts and the Residential Institutions Redress Act. See Murphy v.

Minister for Public Expenditure and Reform [2015] IEHC 868.

The Compensatory Principle

64. The first and foremost principle underlying the assessment of damages at common law is

best expressed in the Latin phrase restitutio in integrum, the object of which is to restore

the plaintiff, through a money award, to the same position which was enjoyed at the time

when the wrong was committed. The amount of the damages must be (i) fair and

reasonable to the Plaintiff and the Defendant and (ii) commensurate with and

proportionate to the injuries and loss sustained. Whereas the precise assessment of

pecuniary loss is an exercise by which the objective may be realised effectively, money is

clearly an inadequate medium of recompense for non-pecuniary loss. As Lord Morris of

Borth-y-Gest observed in H. West and Son Ltd v Sheppard (1964) AC 326 (HL) at 346,

“money cannot renew a physical frame that has been battered and shattered. All that

judges and courts can do is to award sums which must be regarded as giving reasonable

compensation”. See also Rushton v.National Coal Board [1953] 1 Q.B. 495 at 502; M.N

v. S.M [2005] 4 IR 461 at 473; Bennett v. Cullen [2014] IEHC 574 at para 37 et seq;

and Woods v. Tyrell (supra), at para 21.

65. To talk of meeting the restorative objective by a money award, particularly in a case

involving very serious or catastrophic injuries, is to talk of what O’Higgins C.J. described

in Sinnott v. Quinnsworth [1984] ILRM 523 at 532 as “assaying the impossible”.

Nevertheless, that is the task which the Court must undertake, damages being the

remedy for the consequences of the wrong provided by law to the victim.

Lump Sum Awards

66. In seeking finality to litigation, the common law requires damages be assessed on a once

and for all basis in a lump sum award. Provisional or stage payment awards are not part

of the common law and, absent agreement between the parties, are possible only where

provision has been made by statute. In arriving at a lump sum award the court may only

compensate the plaintiff for past, present and prospective losses; recovery of

compensation for loss that might possibly occur in the future is not permissible. See A. B.

v. B.C. (supra) and L. O’S. v. Minister for Health and Children (supra). As we shall see

later, the Acts modify the common law in this regard by giving an applicant the right to

return to the tribunal in certain circumstances to have further compensation assessed for

a serious consequence of infection envisaged and identified as no more than a possibility

at the time when what is described as the ‘provisional award’ was made.

General and Special Damages; Meaning

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67. Past and prospective pecuniary losses such as loss of earnings, medical and care costs

and other out-of-pocket expenses which are ascertained or are ascertainable and are

specified, for example, by way of actuarial calculation, are commonly referred to as

‘special damages’ and are said to be in addition to ‘general damages’. This categorisation

has potentially important consequences in the context of carrying out an assessment in a

case involving very serious or catastrophic injuries to which, depending on the

circumstances, the ‘cap’ on general damages may or may not apply. Other than actual

pecuniary loss which has been ascertained, specified and claimed by way of ‘special

damages’, the term ‘general damages’ in personal injury actions covers all pecuniary and

non-pecuniary loss, past, present and prospective, and includes compensation for ‘pain

and suffering’, ‘inconvenience’, and ‘interference with the pleasures of life and loss of

amenity’.

‘Pain and Suffering’;Meaning

68. Before the abolition of the citizen’s right to trial by jury in personal injuries actions (see

s.1 of the Courts Act 1988), damages were assessed by the jury. Questions on the issue

paper habitually divided the assessment of general damages between the past, present

and future by inviting the jury to assess damages for ‘pain and suffering’ to date and, if

appropriate, damages for ‘pain and suffering’ into the future. The instructions on the law

given to the jury in the course of the trial judge’s charge served as a useful reminder to

practitioners and judges alike of the nature, meaning, purpose and ambit of an award of

general damages and when used in that context, all were familiarised with the heads of

loss covered and left in no doubt as to the meaning of ‘pain and suffering’.

69. In this regard the jury were instructed that damages for ‘pain and suffering’ not only

meant compensation for the neurological experience of physical pain and/or mental

suffering but also for other heads of non-pecuniary loss such as inconvenience and

interference with the amenities and pleasures of life enjoyed or as might likely be enjoyed

by the plaintiff at the time when the wrong was committed.

General Damages; Meaning and Purpose

70. In Sinnott v. Quinnsworth (supra), at 531, O’Higgins C.J. succinctly encapsulated the

instruction given to the jury on the meaning and purpose of general damages where he

stated “General damages are intended to represent fair and reasonable monetary

compensation for the pain, suffering, inconvenience and loss of the pleasures of life which

the injury has caused and will cause to the Plaintiff.” Sinnott is generally recognised as

the seminal authority for the rationale and introduction of the limit or ‘cap’ on the amount

of general damages in certain types of case.

Rationale for a Limit or ‘Cap’ on General Damages in Certain Cases

71. The rationale for the recognition and existence of a limit or “cap” in such cases was

explained by O’Higgins C.J. in Sinnott v. Quinnsworth (supra) at 532, a case where the

jury had awarded total damages of £1,484,591.72, £ 800,000 of which was for general

damages,

“In my view a limit must exist, and should be sought and recognized, having regard

to the facts of each case and the social conditions which obtain in our society. In a

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case such as this, (emphasis added) regard must be had to the fact that every

single penny of monetary loss or expense which the Plaintiff has been put to in the

past or will be put to in the future has been provided for and will be paid to him in

capital sums calculated on an actuarial basis. These sums will cover all his loss of

earnings, past and future, all hospital and other expenses in relation to the past

and the future and the cost of the special care which his dependence requires, and

will require, for the rest of his life. What is to be provided for him in addition in the

way of general damages is a sum, over and above these other sums, which is to be

compensation, and only compensation. In assessing such a sum the objective must

be to determine a figure which is fair and reasonable. To this end, it seems to me,

that 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. It may be that in addition, on the facts of

a particular case, other matters may arise for consideration in assessing what, in

the circumstances, should be considered as reasonable.”

It is clear from the context and the remarks preceding this extract from the

judgment and the nature of the case under consideration that when referring to the

desirability and necessity for a limit on general damages the Chief Justice was

speaking about a case where there was a very substantial claim for special

damages or an ‘omnibus’ sum as it has variously been described in subsequent

decisions.

Distinction between ‘Cap’ and non ‘Cap’ cases;

72. The existence of a very substantial pecuniary loss claim to cover all aspects of the

plaintiff’s past and future requirements is the most significant distinguishing feature

between ‘cap’ and non ‘cap’ cases which may impact the amount to be awarded for

general damages and the approach to be taken by the court to the assessment. Suffice to

say that where a substantial claim is mounted by way of special damages for past and

future pecuniary losses in the case of a very seriously or catastrophically injured plaintiff

sufficient to provide for the future care and all the bodily needs of the plaintiff, such a

claim is a factor to be taken into account by the court in determining the level of general

damages and should be reflected in the amount to be awarded. See Reddy v Bates

(supra) at 202.

Consequences

73. The most significant but by no means the only consequence which flows from the

difference between a ‘cap’ and non ‘cap’ case is the jurisdiction of the court to award a

sum for general damages which exceeds the ‘cap’ amount. Following a review of case

authority culminating with Kealy v Minister for Health [1999] 2. I.R. 456, Irvine J.

commented on this jurisdiction in J.R. v. Minister for Health and Children (supra) at para

48; having held that the ‘cap’ did not apply the court went on to award the appellant a

net €500,000 general compensation.

74. In E.K v N.P. (unreported), H.C. delivered ex tempore 1st July 2015, another non ‘cap’

case, the court awarded €500,000 to a plaintiff whose life was blighted in every way as a

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result of persistent sexual abuse perpetrated by the defendant, a family friend and

neighbour, between the ages of 9 and 13 as a result of which he suffered a very severe

post-traumatic stress disorder involving permanent lifelong sequelae.

In the overall scheme of awards whilst cases where general damages exceed the ‘cap’

amount are relatively rare they are, nevertheless, well recognised. See Kealy v. Minister

for Health (supra) at 458; Gough v. Neary (supra) at 132; M.N. v S.M. (supra), at 468;

Yang Yun v. MIBI (supra); J.R. v. Minister for Health and Children (supra) at 48; Kearney

v. McQuillan (supra) at 388 and Nolan v. Wirenski (supra) at 471.

Approach of the Court

75. The approach to be taken by the trial judge in such a case, or on an appeal by the

appellate court, is to consider whether the total sum for damages to be awarded is, in all

the circumstances of the case, fair and reasonable compensation for the plaintiff for the

injuries suffered or whether it is out of all proportion to such circumstances. The

reasoning and decision to this effect which, significantly, is part of the ratio decidendi in

Reddy v. Bates (supra) was followed in Cooke v Walsh [1984] ILRM 208 at 220; in

Sinnott v. Quinnsworth (supra) at 531 and M. N. v. S.M. (supra) at 468.

76. The proposition that a substantial claim for future pecuniary losses is a factor to be taken

into consideration by the court and reflected in the amount of general damages explicit in

these decisions was criticised by White in Irish Law of Damages (Chap.3.3.06 et seq),

questioned by McMahon and Binchy in Law of Torts (4th ed, Chap. 44. 238) and expressly

rejected by the Court of Appeal in Nolan v. Wirenksi (supra), as being contrary to

principle. Acknowledging that there were dicta in support, at para 36 Irvine J. rejected as

“…unjust and even perhaps irrational…” the proposition that an injured plaintiff is to have

his general damages reduced because he has received due recompense for his out of

pocket expenses and future needs, moreover, the court considered that Sinnott did not

appear to be authority for that approach, noting that the Chief Justice had been careful

when expressing the principle underlying compensatory damages to ensure a proper

distinction was drawn between sums to be provided for special and general damages.

77. However, in Cooke v. Walsh (supra), the Chief Justice concurred with the judgement of

Griffin J. following his judgement and the decision to this effect in Reddy v. Bates,

moreover, this statement of the law was cited with approval and repeated verbatim by

the Chief Justice in Sinnott v. Quinnsworth (supra). Furthermore, it is clear from

subsequent decisions of the High Court and the Supreme Court that this approach, first

enunciated in Reddy v. Bates (supra), continues to enjoy support and has been

consistently followed and adopted in cases to which the ‘cap’ applies. See Gough v.

Neary; Yun v. MIBI; JR v Minister for Health and M.N v. S,M. (supra), where the subject

was revisited and dealt with expressly by Denham J. (as she then was) at p 468. In so far

as there appears to be a conflict in this respect between those decisions and Nolan v.

Wirenski (supra), this Court is, of course, bound by the decisions of the Supreme Court.