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38 Cards in this Set

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Damages - Introduction
Damages are the primary and traditional remedy in tort law.

Primary aim: to put the Pl in the position in which they would be had the tort not been committed.

Secondary aim: deterrence.

In our jurisdiction, still a once-off lump sum for all previous and future damage; advantage = legal finality, disadvantage = difficulty of assessment. NZ has introduced periodic review of damages.
Compensatory Damages
The most common form of damages.

The pure purpose of these damages is to put the Pl in the position they would be in without the tort.

Two main categories:

Damages for Non-Pecuniary Loss (General Damages)

Damages for Pecuniary Loss (Special Damages)
Damages for Non-Pecuniary Loss (General Damages)
These damages cover pain and suffering, loss of expectation of life and loss of amenity.

They are broken down into past and future loss.

The main difficulty here is putting a monetary value on pain and suffering.

Assessing non-pecuniary loss: Sinnott v. Quinnsworth (1983): general damages cannot be punitive, and difficult as it can be, must reflect the pain and suffering only; also, it was contrary to public interest to award such high damages.

Gough v. Neary (2004): SC held that the upper tariff for general damages applies only in cases with large special damages; otherwise, the court was free to award based on the facts;

Nolan v. Murphy (2005): SC reduced general damages in a serious sexual offences case from €600,000 to €350,000, holding that despite the gravity of the case, the courts must consider both Pl and Def – in this case the Def had pleaded guilty, had apologized, and was serving an 8-year sentence.
Sinnott v. Quinnsworth (1983)
A young man rendered quadriplegic by an accident was initially awarded £800,000; the appeal court lowered this to £150,000, holding that general damages cannot be punitive, and difficult as it can be, must reflect the pain and suffering only; also, it was contrary to public interest to award such high damages. Similar accidents involved awards of £200,000 (in 1996) and £250,000 (in 1999), but the courts have since rejected the notion of fixed damages for such cases:
Gough v. Neary (2004)
SC held that the upper tariff for general damages applies only in cases with large special damages; otherwise, the court was free to award based on the facts;
Nolan v. Murphy (2005)
SC reduced general damages in a serious sexual offences case from €600,000 to €350,000, holding that despite the gravity of the case, the courts must consider both Pl and Def – in this case the Def had pleaded guilty, had apologized, and was serving an 8-year sentence.
Hughes v. O’Flaherty (1996):
Hughes v. O’Flaherty (1996): SC: as a rule, an incompetent plaintiff still receives damages for pain and suffering – unless there are extreme circumstances.
The incompetent plaintiff
It has been argued that a Pl whose injuries have rendered him unaware of his loss should receive less damages for pain and suffering;

Hughes v. O’Flaherty (1996): SC: as a rule, no – unless there are extreme circumstances.
Loss of expectation of life
Often, courts award only moderate damages here, as they are covered by pain and suffering; however in:

Philip v. Ryan (2004), an appeal judge increased damages on cross-appeal where it was shown that a doctor who had negligently failed to recognise prostate cancer later tampered with a clinical record to suggest that he had recommended further tests; the court held that his failure to spot the cancer and the ensuing medical delay, had shortened life-expectancy. This, in tandem with the tampering with the record, led to damages increasing from €45,000 to €100,000.
Philip v. Ryan (2004)
An appeal judge increased damages on cross-appeal where it was shown that a doctor who had negligently failed to recognise prostate cancer later tampered with a clinical record to suggest that he had recommended further tests; the court held that his failure to spot the cancer and the ensuing medical delay, had shortened life-expectancy. This, in tandem with the tampering with the record, led to damages increasing from €45,000 to €100,000.

Aggravated damages of €55,000 extra awarded – this is intention, or at least recklessness.
Damages for Pecuniary Loss (Special Damages) - Loss of earnings
Difficult to calculate – courts take account of economic climate, possible redundancy etc.
Reddy v. Bates (1984)
Court held that issues such as possible redundancy, ill health, marriage in assessing future employment;
Murphy v. Minister for Defence (1999)
Qualified Reddy, saying that in times of a weak economy, the Pl’s situation needs to be examined realistically; in times like these (economic strength), courts focus on the Pl’s specific circumstances;
Jeffers v. Cahill (1996)
Court emphasised that Pls are individuals, not statistics, and their personal, family, and social circumstances are most relevant;
O’Donoghue v. Deecan & Sons (1999)
Pl woodworker claimed that he was no longer fit to work because of a phobia brought on by a blade injury at work; appeal court found that the trial judge had allowed too much evidential weight to be put on the Pl’s GP’s testimony, that of a career counsellor, and the Pl’s wife; Pl claiming unfitness to work does not enjoy a presumption that this is true – the court must assess the medical and psychiatric situation on the basis of all evidence;
Muckley v. West Lodge Hotel (2005)
Pl was a self-employed tourism consultant two years in the business (both of which operated at a loss); injured by a screen at the Def’s premises; claimed that she would not be able to continue business due to the injury; court acknowledged impossibility of predicting a business’s future, but reckoned the business would have survived 5 years; awarded €58,500 for loss of 5 years’ earnings, as well as general damages for past and future suffering.
Damages for Pecuniary Loss (Special Damages) - Medical costs
Reasonable medical expenses including future care are estimated.

Question: does “reasonable” include private care?

Traditionally the test is whether a Pl has had private care pre-injury; McMahon & Binchy think a fairer test would be whether private care is reasonable in the circumstances.

s. 2(1) Health (Amd) Act 1986 requires health boards to charge patient directly where the patient has received or is entitled to receive damages for injuries.
s. 2(1) Health (Amd) Act 1986
s. 2(1) Health (Amd) Act 1986 requires health boards to charge patient directly where the patient has received or is entitled to receive damages for injuries.
O’Rourke v. Scott (1993)
Kinlen J. held that charging such patients the “full economic cost” of running the hospital just because the insurance company is footing the bill = a form of unfair taxation; thus the practice was simply to charge such patients £100 per day (later £150 per day) for an in-patient bed, under what is known as the Kinlen Order.
Crilly v. Farrington (2001)
A dispute between the EHB and insurance company regarding special damages;

the SC overruled the Kinlen Order, holding that a more methodical method of calculating daily stay in a hospital was the average cost of bed an board in the hospital; for Beaumont at the time of the case, that was £525 per day.
Damages for Pecuniary Loss (Special Damages) - Reflecting tax liability
SC in Hogan v. Steele (2000): future tax deductions from a Pl’s income should be considered, as to force the Def to pay the gross sum of earnings would be to overcompensate the Pl, as legislation exempts damages for loss of earnings from capital gains tax – thus damages amounting to future net earnings reflect fairness better.
Hogan v. Steele (2000)
SC held that future tax deductions from a Pl’s income should be considered, as to force the Def to pay the gross sum of earnings would be to overcompensate the Pl, as legislation exempts damages for loss of earnings from capital gains tax – thus damages amounting to future net earnings reflect fairness better.

Pl received discretionary sick leave payments for 3 years from his employer under the understanding that these would be repaid on receipt of damages from the Def; Def argued the Pl had suffered no loss of earnings while receiving these payments; court found that these payments could lead to no deduction from damages, as they were akin to a bank loan; (they contrasted from contractual sick pay, which counts as earnings, and is deductible).
Damages for Pecuniary Loss (Special Damages) - Domestic help
The cost of necessary domestic carers is awarded as part of special damages; more recently, the courts have recognised the right of gratuitous carers (e.g. family, friends) to be reimbursed, as need for their help constitutes loss to the Pl.

Their reimbursement is calculated at 60% of the fee of a professional.
Damages for Pecuniary Loss (Special Damages) - Financial advice
Pl may need advice as to how to manage/invest the award; a moderate amount was allowed for this in Ward v. Walsh (1991).
Damages for Pecuniary Loss (Special Damages) - Non-Deductibility of Collateral Benefits
s. 2 CL(A)A 1964 provides that no damages will be reduced based on contractual or insurance pay-outs by third parties or statutory pay-outs or pension benefits due to early retirement.

The rationale is that the Def should not benefit from third-party payments.
Aggravated Damages
Generally awarded for reckless or intentional commission of a wrong, they are categorically included in compensatory damages, but reflect the exceptional wrong-doing of the Def.

Generally not awarded in negligence claims, except in extreme cases FW v. BBC (1999)
FW v. BBC (1999)
Court awarded £15,000 in aggravated damages for “gross negligence and professional incompetence” in the conduct of an interview with the Pl on sexual abuse, and for divulging the Pl’s name in spite of an agreement of anonymity.

NB: This is an exception, in that aggravated damages were awarded for negligence, but it is an extreme case.
Daly v. Mulhearn (2005)
Facts showed that the Def had admitted liabilty at the scene of the accident, apologised, and promised to compensate the Pl; subsequently, the Def claimed the Pl had fabricated the incident;

HC awarded aggravated damages of €10,000 because of the deliberate and untrue accusation of the Def.
Exemplary Damages
Old Rookes categories which provided situations for exemplary damages have been rejected all over the common law world. The Irish test was clearly set out in Conway v. INTO (1988): court considered action by the Def trade union which interfered with the right of primary eduction in the course of an industrial dispute; SC found that exemplary damages should

(a) combat wrong-doing rather than benefiting the wronged proportionately;

(b) mark the court’s disapproval of conduct publicly;

(c) punish the wrong-doer for outrageous conduct and deter others.

Courts generally avoid exemplary damages, and awards are usually low. However, one exception:Crofter v. Genport (2002): McCracken J. awarded £50,000 general and £250,000 exemplary because of (i) malicious nature of the tort; (ii) subsequent perjury by the Def,
Conway v. INTO (1988)
Court considered action by the Def trade union which interfered with the right of primary eduction in the course of an industrial dispute; SC found that exemplary damages should

(a) combat wrong-doing rather than benefiting the wronged proportionately;

(b) mark the court’s disapproval of conduct publicly;

(c) punish the wrong-doer for outrageous conduct and deter others.

On the facts, the SC awarded exemplary damages because of the Def’s conscious and deliberate act to make a gain without thought as to who would suffer.
Crawford v. Keane (2000)
Def deliberately gave false testimony as to the incident, which was rebutted by clear eye-witness testimony given by a Garda; the court awarded £7,000 in exemplary damages based on the Def’s misconduct in the aftermath of the tort – i.e. lying.
Crofter v. Genport (2002)
McCracken J. awarded £50,000 general and £250,000 exemplary because of

(i) malicious nature of the tort;

(ii) subsequent perjury by the Def,

in a case regarding phone calls made in order to damage the reputation, morale, and efficiency of the Def company.

SC reduced exemplary damages to £100,000, holding that the award must be proportionate.
Nominal Damages
Token amount of damages where the Pl has suffered a wrong but no harm (e.g. boundary dispute) – where the claim is not frivolous.
Contemptuous Damages
Where Pl is technically correct, but there is not sufficient reason in bringing litigation; the Pl will not generally be awarded costs, as a form of punishment for bringing a frivolous action.
Assessing Awards of Damages
Initially, the case as whole was looked at.

This followed a period of a more categorical approach, with the aim of transparency.

However, Reddy and Sinnott have swung the approach back to an approach where the court looks at the overall damages.

Expert evidence from actuaries is often used by the courts in assessing future loss; however, this scientific approach is counter-balanced by a tendency toward intuition and common sense on a case-by-case basis.
Appealing Damages
The general rule is that an appeallate court should not overturn damages, given the viva voce advantage of a trial court.

However, if the appeallate court finds the award disproportionate, erroneous or unreasonable, it may overturn the award.

The appellate court must take the facts as accepted by the trial judge, unless wholly unsupported by evidence, and may admit new evidence only in extreme circumstances.

Where an award is deemed inappropriate, two options:

(a) retrial;
(b) entering of a new judgment by the appellate court.

An example of the latter = Gough v. Neary (2003)
Gough v. Neary (2003)
Unnecessary hysterectomy; HC’s general damages included €150,000 for future pain and suffering; SC reduced this to €100,000 because the HC had overlooked a psychiatrist’s evidence to the effect that the Pl was likely to make a full recovery.
Kelleher & Kelleher v. Don O'Connor & Co., IEHC 2010 313
Clarke J. stated at paragraph 9.1:

"It is important to start with the fundamental proposition that, in almost all cases, the principal function of the award of damages is to seek to put the party concerned back into the position in which they would have been had the relevant wrongdoing not occurred. . . . In the case of a tort, the court has to attempt to put the plaintiff back into the position in which that plaintiff would have been had the tort not occurred at all. It is the pre-incident position that the court must look at as a starting point."