IpsofactoJ.com: International Cases [2005A] Part 2 Case 9 [SCIre]


SUPREME COURT OF IRELAND

Coram

Murphy

- vs -

Nolan

DENHAM J

GEOGHEGAN J

McCRACKEN J

18 MARCH 2005


Judgment

Denham J

  1. This appeal raises, for the first time in this Court, the issue as to the appropriate level of damages to be awarded in civil proceedings for a continuum of sexual abuse, over five years, which culminated in rape, to a teenager.

  2. Michelle Nolan, the plaintiff/respondent, hereinafter referred to as the plaintiff, has brought civil proceedings against Simon Murphy, the defendant/appellant, hereinafter referred to as the defendant, for damages for sexual assault and for actions calculated and intended to cause emotional suffering.

  3. On 27th February, 2004, after hearing evidence and submissions from counsel for the plaintiff and the defendant, a jury assessed damages at €600,000 and the High Court ordered that the plaintiff do recover against the defendant the sum of €600,000 and the costs of the action. This is an appeal by the defendant from that award.

  4. The defendant has appealed on the following grounds:

    1. that the jury erred in law and in fact and was wrong in awarding the plaintiff the sum of €600,000.00 in general damages;

    2. that the jury’s assessment of damages of €600,000.00 was excessive, went against the evidence, and against the weight of the evidence.

  5. The case was heard in the High Court before Kearns J. and a jury on the 17th February, 2004. The defendant having admitted the abuse, the only issue for the jury was the amount of damages to award to the plaintiff.

    I. FACTS

  6. The facts were not disputed. The events in issue took place between 1990 and 1995, when the plaintiff was between 12 and 17 years of age. The Murphy and Nolan families were friends. The Nolans lived in Dublin, the Murphys lived in the country, and the families would visit each other’s homes.

  7. The plaintiff was abused by the defendant in her own home and in the Murphys’ home and premises. Between 1990 and 1995 she was repeatedly and, in different ways, sexually assaulted. The defendant admitted that he so acted between 1990 and 1995.

  8. The nature of the abuse developed over the years. The activity started with the defendant putting his hand on her breast, her buttocks, and generally acting improperly. He fondled her over and under her clothes and tried to kiss her. He pinched her nipples. He rubbed and touched her. Initially he was not violent to her. The sexual abuse developed in 1992. Late at night he would make her masturbate him and make her touch him inappropriately. He would kiss and bite her neck. He touched her improperly and inserted his fingers into her vagina. The plaintiff remembered Christmas 1992. She told the jury that the defendant would be asking “if it was nice?” He would say things such as “it is our secret”. He became more insistent. She gave evidence of the defendant coming to her home when no one else was there and of his attempting to have intercourse with her and making her masturbate him. The plaintiff said the years 1994 and 1995 were the most painful. She was as resistant as she could be, kicking him and scratching him when he approached her. She said it was constantly happening. She gave evidence of instances of full penetrative sex.

  9. The plaintiff gave evidence that it ended in 1995. She had been crying out for someone to “cop on”. She had written an essay for her Junior Certificate and it included some references to this abuse. The teacher called her up and asked her if everything was alright. The abuse was in its fifth year. On the 14th January of that year the defendant was staying in the plaintiff’s family house. The plaintiff was washing her teeth. The defendant rubbed against her. She swore at him. His wife came in and asked what was her problem with the defendant. The abuse then stopped.

  10. The plaintiff gave evidence that she would go off into her own world when the abuse was happening. She felt that if she had told about it, it would have caused a massive break up between the families. She said the families were intertwined. She said she did not think that she would be believed. She felt that if it was happening to her it would not happen to anyone else; she was concerned as there were other children in the family.

  11. An event occurred in 1997 which made her talk about the assaults. Her sister came in, very distressed. Her sister was 15 years of age at the time. Her sister said:

    Did Simon Murphy ever touch you?

    Bit by bit the plaintiff told what had happened to her. The day she got her Leaving Certificate results she told her mother the whole story.

  12. The plaintiff said she did not have a happy, contented childhood. She said that once she came out in the open about the abuse she was branded all sorts of names and she was not believed. She gave evidence of her difficulty in coping with college – panic, anxiety, nightmares. The note of her evidence includes the following:

    Every night she had nightmares. She woke up screaming. She tore the sheets. She screamed. She got into bed with her parents. She was afraid to go back to sleep. She was sucking on a baby soother. She wanted to be small again. She wanted to be a baby. She had bad thoughts about herself. She felt cut off .... She could not trust anyone. Everyone in college (her peers) were enjoying themselves, they had boyfriends and she, the witness, could not get out of bed in the mornings.

    She gave evidence of difficulties in coping and of depression. Her evidence showed that the year 2003 was a particularly bad time.

  13. The plaintiff’s general practitioner gave evidence of the plaintiff being distressed, the family being distressed, consultations in relation to depression, gastro-intestinal problems related to depression, and that while the plaintiff was coping she was upset and anxious. He gave evidence that the plaintiff had suffered flashbacks over a period and that the plaintiff had difficulty in engaging in treatment, which was very common for people who had been abused; she had attended a therapist and only lately engaged. The plaintiff had been and was on anti-depressants. He said that her attempts to withdraw had lessened, that there was a recent subtle change, and she was able to engage with her treatments. She had a very, very long way to go yet, he said. He said it was difficult to give an accurate prognosis. He agreed that this type of scenario might stay with a victim all their lives and that that could be the case for her. Principally she was suffering from depression, sleep disorder, hopelessness, loss of energy, and loss of motivation.

  14. A consultant psychiatrist also gave evidence. He said that the abuse had left the plaintiff’s life blighted. While her depression had responded to treatment, it was likely, he considered, that she would continue to need anti-depressant medication. He stated that she had feelings of self-loathing and low self-esteem. He gave evidence that the adolescent years are critical, especially for girls. In this case the plaintiff’s development had been subverted by sexual abuse at the pre-pubertal stage. Her development had been altered and derailed. The effects were incalculable on a long-term basis. He would expect difficulties in emotional and physical intimacy, which would possibly be life long. He agreed that the plaintiff had benefited by confronting the defendant in the witness box in the criminal trial and by telling her story in this case.

  15. When the defendant was confronted with the abuse, he admitted it. When first interviewed by the Gardaí, he admitted it. Counsel for the defendant said that he was instructed to apologise and to repeat the previous apology. The defendant pleaded guilty in the criminal prosecutions in both the District Court and the Circuit Court. He admitted that the plaintiff told the truth. The defendant has been sentenced to eight years imprisonment and is a prisoner in Wheatfield Prison. He has undertaken therapy. Mrs. Murphy is now rearing their four children on her own. They had a share in a public house business.

    II. HIGH COURT JUDGE

  16. The learned trial judge addressed the jury. He told the jury to beware the tidal wave of emotion and not to adopt a punitive approach, as to do so would be an incorrect approach. He said that damages are compensatory, everything past, present and future is wrapped up in a single award. He explained that he could not give directions or guidelines but indicated that the jury should be analytical and detached. He directed them not to be punitive. He pointed out that the plaintiff had walked into the sea at Sandymount, she had struggled with exams, she had had a terrible time. That said, she had gone to the United States of America and, ultimately, she had passed her college exams. He instructed the jury to keep proportion and that they should be fair.

    III. ASSESSMENT

  17. The jury retired at 3.37 p.m. and came back at 4.15 p.m. The jury assessed damages at €600,000.

    IV. DEFENDANT'S SUBMISSIONS

  18. The defendant has appealed against the award as being excessive. Mr. Simon Kennedy, solicitor on behalf of the defendant, submitted that the jury erred in the amount of damages which it assessed:

    1. in failing to take into account mitigation of damage;

    2. in failing to take into account the conduct of the defendant in admitting his guilt at an early stage and in apologising to the plaintiff;

    3. in failing to take account of the defendant’s expression of remorse;

    4. in awarding what must be presumed to be the maximum award in general damages; and

    5. in awarding excessive damages.

  19. He submitted further that the jury erred in failing to take into account the defendant’s circumstances and ability to pay. It was submitted that the defendant was in prison for the matters complained of and serving an eight year sentence, and that he had previously been a joint owner of a family residence and public house which was subject to a mortgage, a right of residence, and maintenance and support in respect of a residential portion of the licensed premises. Further it was submitted that the defendant was married with four children.

    V. PLAINTIFF'S SUBMISSIONS

  20. Turlough O’Donnell, S.C., counsel on behalf of the plaintiff, submitted that this award should stand. He argued that it could not be said to be plainly unreasonable as contained in the award are damages for past pain and suffering, future pain and suffering, loss of happy childhood, loss of opportunity, aggravated damages, damages for interference in privacy, and a recognition of rape and sexual abuse in a continuum, or a system, of harm and wrongdoing.

    VI. NOVEL CASE

  21. It appears that this is the first award of damages for sexual abuse by a civil jury. It is the first appeal before the Supreme Court from such an award which raises the issue of the sum to be awarded in general damages for sexual assault, sexual abuse, and rape, in a continuum, of a teenage girl. Consequently there are no precedents to guide the Court. However, there is information from other sources which may inform the Court and which may be of assistance.

    VII. GENERAL DAMAGES

  22. The level of the award of general damages is the issue on the appeal. While there is no common law directly on point, there are cases which give assistance. As this is a case where very serious injuries and damages have occurred, the range of damages open to a court is relevant. In relation to the scope of damages the Supreme Court has indicated an approach. In Sinnott v Quinnsworth I.L.R.M. 523, O’Higgins C.J., in a judgment with which the other members of the court agreed, held, at page 532, that there should be a limit on the award of general damages. He stated:

    In my view a limit must exist, and should be sought and recognised, having regard to the facts of each case and the social conditions which obtain in our society. In a case such as this, 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. However, a yardstick of a reasonable nature must be applied if reality is to be retained in the assessment of such compensation. In this case the jury assessed general damages at a total sum of £800,000. In my view, such an assessment lacks all sense of reality. It matters not at all what proportion of such a sum is attributable to pain and suffering for the past and what for the future. What is important is the total and this is a sum which if invested would yield a yearly income which in itself would defy even the most profligate expenditure. Such a sum bears no relation to ordinary living standards in the country or to the income level of even the most comfortable and best off in our community. Further, it could not bear any reasonable relation to the uses to which the plaintiff by reason of his injury could put money awarded as damages. In my view, unless there are particular circumstances which suggest otherwise, general damages in a case of this nature, should not exceed a sum in the region of £150,000. I express that view, having regard to contemporary standards and money values and I am conscious that there may be changes and alterations in the future, as there have been in the past.

    I would, accordingly, set aside the total award of £800,000 in respect of general damages, and substitute therefore a total sum of £150,000.

  23. I would adopt and apply the general principles set out by O’Higgins C.J., with one significant difference. In a case where catastrophic injuries have occurred and where a plaintiff is left, for example, a paraplegic, there will be a significant award of special damages. This considerable sum of special damages is a factor in determining the level of general damages when the overall situation is considered by the court, and may result in a reduction of the level of general damages awarded. No such factor arises in this case where there is no award of special damages, much less a significant award.

  24. That is not to say that the plaintiff did not suffer special damages, such as medical expenses, but they have not been quantified. It is a matter which the jury were entitled to take into account in assessing general damages.

  25. The sum must be fair and reasonable. The sum is to cover pain and suffering in the past and in the future. Applying Sinnott, regard must be had to ordinary living standards, to the general level of incomes, and to things upon which the plaintiff might spend the money.

  26. The fact that the courts have considered a limit on general damages, in catastrophic injury cases, subject to the circumstances, is relevant. That limit has increased over the years. Thus, in Kealy v Minister for Health [1999] 2 I.R. 456, at page 459, Morris P. stated:

    My own day to day experience in the courts ruling in infant settlements is the clearest possible test for me that the cap of £150,000 is no longer regarded as applicable by practitioners ....

    In my view the correct measure of damages for the appellant for general damages for a lady whose life has been effectively ruined is £250,000.

  27. McEneaney v County Council of the County of Monaghan and Coillte Teo, (Unreported, High Court, O’Sullivan J, 26th July, 2001) held that a reasonable equivalent to the £150,000 for general damages in Sinnott would be £300,000. I am satisfied that the equivalent figure today, to the £150,000 of Sinnott, is in excess of €300,000.

  28. This informs the analysis of a limit on the award of general damages. Such analysis assists in assessing general damages in the circumstances which have arisen in this case.

    VIII. THE REDRESS BOARD

  29. No previous cases determining awards of general damages in cases of sexual assault and sexual abuse similar to this have been brought to the Court’s attention. In these circumstances it is useful to consider other schemes where sums are awarded for similar injuries. While such schemes do not provide a precedent for the Court, or in any way affect the jurisdiction of the Court, it is appropriate to consider the experience of such a specialist scheme.

  30. In a report, to the Minister for Education and Science, entitled "Towards Redress and Recovery", the Compensation Advisory Committee, appointed under s.14 of the Residential Institutions Redress Bill, 2001, considered compensation tariffs in other jurisdictions and some recent Irish court awards of general damages for personal injury. Subsequently the Residential Institutions Redress Act, 2002 formed the basis for a system of awards. A guide to the Redress Scheme under the Residential Institutions Redress Act, 2002 is published by the Residential Institutions Redress Board. In the Second Edition, issued in October 2004, the meaning of “abuse” is defined as including “the use of the child by a person for sexual arousal or sexual gratification of that person or another person”. Examples of sexual abuse for which redress may be possible under the scheme are given. The awards made by the Redress Board are required by the Act to be “fair and reasonable having regard to the unique circumstances of each applicant”. The Act also requires that in making an award the Board shall have regard to the regulations made by the Minister. Under the Residential Institutions Redress Act, 2002 (Assessment of Redress) Regulations 2002, redress is awarded under four headings, being

    1. redress in respect of the severity of the abuse and injury;

    2. additional redress on the principle of aggravated damages;

    3. medical expenses; and

    4. other costs and expenses.

    In relation to (i) there is a two stage process. First, the Board assesses the weight to be attached to the different elements of the victim’s experience, according to a table, as follows:

    Constitutive elements of Redress

    Severity of abuse

    Severity of injury resulting from abuse

    Medically verified physical/psychiatric illness

    Psycho-social sequelae

    Loss of opportunity

    Weighting

    1 – 25

    1 – 301 - 301 - 15

  31. Thus the Board will first consider the severity of the abuse suffered by the individual applicant and make an award on a scale 1-25, with 25 representing the most severe abuse. Secondly, the Board will assess, by reference to the medical evidence, on a scale of 1-30 the severity of the physical and /or psychiatric illness suffered by the applicant as a result of the abuse. Thirdly, the Board assesses the psycho-social sequelae of the abuse. Finally, on a scale of 1-15, it will assess the loss of opportunity suffered by the applicant. When the four separate weightings are added together, the Board will “stand back” and look at the case overall to see whether the total assessment reached is reasonable in all the circumstances for that applicant and, where necessary, it will make appropriate adjustments. The amount determined is then awarded according to redress bands. These bands are as follows:

    Redress Band

    Total weighting for severity of abuse and injury/effects of abuse

    Award payable by way of Redress

    V

    IV

    III

    II

    I

    70 or more

    55 – 69

    40 – 54

    25 -39

    Less than 25

    €200,000 - €300,000

    €150,000 - €200,000

    €100,000 - €150,000

    €  50,000 - €100,000

    Up to €50,000

  32. Thus it is envisaged that, in general, the maximum award under the scheme would be €300,000. However, where the abuse suffered by an applicant and the injury are considered by the Board to be so serious as to constitute an exceptional case which cannot reasonably be provided for within the redress bands, the Board may deviate from the scheme but it is required to inform the Minister of its reasons for so doing.

  33. This specialised Board has established an elaborate system for assessing awards of general damages for sexual abuse of a child. The system is not a precedent for the Court. Nor am I suggesting that the intricacies of the scheme should be opened to a jury in a trial court. However, for the benefit of analysis in an appellate court, when considering the framework in which the sum of general damages for sexual abuse is assessed, it is informative.

    IX. PERSONAL INJURIES ASSESSMENT BOARD

  34. The Personal Injuries Assessment Board Act, 2003 established the Personal Injuries Assessment Board, referred to as PIAB. The long title to the Act described it as an Act to enable, in certain situations, the making of assessments, without the need for legal proceedings to be brought in that behalf, of compensation for personal injuries (or both such injuries and property damage), in those situations to prohibit, in the interests of the common good, the bringing of legal proceedings unless any of the parties concerned decides not to accept the particular assessment or certain other circumstances apply, to provide for the enforcement of such an assessment, and for those purposes to establish a body to be known as the Personal Injuries Assessment Board and to define its functions and to provide for related matters. When this Act is brought into full operation it may apply to a civil action, by an employee against an employer, arising out of a road traffic accident, against another arising out of that other’s use or occupation of land, or any structure or building, and a civil action not falling within any of the above other than an action arising out of the provision of any health service to a person or an action for medical negligence.

  35. While the Personal Injuries Assessment Board Act, 2003 does not apply to this case, s.22(1) of the Civil Liability and Courts Act 2004 provides that the Court shall, in assessing damages in a personal injuries action, have regard to the Book of Quantum. Section 22(2) provides that s.22(1) shall not operate to prohibit a court from having regard to matters other than the Book of Quantum when assessing damages in a personal injuries action. In this section ‘Book of Quantum’ means the Book of Quantum required to be prepared and published by the Personal Injuries Assessment Board under the Act of 2003. The Book of Quantum states that it contains a guideline of injuries and related values. It lists injuries and levels of compensation. The guidelines relate to head injuries, arm injuries, neck, back and trunk injuries, and leg injuries. The highest level of awards are spinal cord injuries, in relation to which it states:

    The courts set the maximum compensation with the exact value being based on a number of considerations:

    (a)

    level of movement

    (b)

    level of pain and suffering

    (c)

    depression – level of achievable rehabilitation

    (d)

    age and life expectancy

    Quadriplegia up to €300,000

    Paraplegia up to €300,000

  36. While this is not a precedent for this case, it is informative. Its usefulness is limited, however, by the fact that it does not relate to purely psychological damage, and it does not relate to injuries for sexual abuse. However, it does indicate that in the most serious injuries, paraplegia and quadriplegia, the general damages are the highest awarded and that in general such an award maybe up to €300,000.

    X. NATURE OF INJURY

  37. The nature of the injury to the plaintiff is complex and may be permanent. There are a number of important factors to be considered in analysing this injury.

    • First, in this case the injury did not occur on a single occasion. It was not one sexual assault or one rape. Rather it was a continuum of abuse over years. This had an effect more than the individual assaults – it created a continuum. The consequence to the plaintiff was greater than the sum of the individual assaults.

    • Secondly, the assaults and rape took place at a critical time in the life of the plaintiff; she was an adolescent. The consequence has been that her development was altered and subverted.

    • Thirdly, the consequences to the plaintiff may be lifelong. The injuries inflicted upon the plaintiff have scarred her emotionally and developmentally. She may have emotional and intimacy difficulties for life.

    • Fourthly, while the injuries to the plaintiff arise out of a continuum of sexual assault over five years at a vulnerable time in her life, this sexual assault ultimately developed into rape of the plaintiff. Rape is a most serious injury to a person. This was described in The People (D.P.P.) v Tiernan [1988] I.R. 250 at p. 253 by Finlay C.J. as:

    The act of forcible rape not only causes bodily harm but is also inevitably followed by emotional, psychological and psychiatric damage to the victim which can often be of long term, and sometimes of lifelong duration.

    ....

    Rape is a gross attack upon the human dignity and the bodily integrity of a woman and a violation of her human and constitutional rights. As such it must attract very severe legal sanctions.

  38. Thus, the general damages should reflect the very serious and possibly lifelong injuries.

    XI. INFORMATION ON AWARDS OF GENERAL DAMAGES

  39. There are no guidelines given to a jury, or indeed to a judge, as to the award of general damages in cases such as this, or indeed in any case relating to personal injuries. Information on awards of general damages in personal injury cases to assist a court, (in most cases now a judge sitting alone), is published in England and Wales and in Northern Ireland: see Guidelines for the Assessment of General Damages in Personal Injury Cases, published by the Judicial Studies Board of England and Wales, and Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland. In Ireland the Committee on Court Practice and Procedure advised, in the 29th Report, Inquiry to Examine all Aspects of Practice and Procedure relating to Personal Injuries Litigation, that there be published information on awards of general damages in personal injuries litigation, that the Judicial Studies Institute consider establishing a Working Group to gather, compile and publish such information, that resources be made available to enable the gathering of relevant information, and that the Rules of Court be amended to enable counsel to bring to the attention of the court, awards of general damages in earlier court decisions, and, when completed, any relevant judicial publication. I am of the view that information on awards of general damages given in previous cases and information published by the judiciary, benefits a court assessing general damages.

    XII. MONETARY REMEDY

  40. The plaintiff has brought this action seeking an award of general damages for her injuries caused as a result of the sexual abuse of the defendant. The remedy available in the courts is monetary, a sum of money, as compensation. It must be recognised first and foremost that no award of money will put the plaintiff back in the position she was before the sexual abuse. No award of damages will retrieve her childhood or repair the damage done to her, emotionally, in her formative years. Further, no amount of money will cure her or render her future clear of the effects of these assaults. An award of general damages is an imperfect mode of compensating a plaintiff, however it is the only method available. It is a recognition of the injuries and damages must reflect the change of circumstances of the plaintiff.

  41. At issue on this appeal is the award of general damages by a jury. In assessing the level of general damages, there are a number of relevant factors to consider. Thus an award of damages must be proportionate. An award of damages must be fair to the plaintiff and must also be fair to the defendant. An award should be proportionate to social conditions, bearing in mind the common good. It should also be proportionate within the legal scheme of awards made for other personal injuries. Thus the three elements, fairness to the plaintiff, fairness to the defendant, and proportionality to the general scheme of damages awarded by a court, fall to be balanced, weighed and determined.

    XIII. DECISION

  42. I am conscious that this case is the first in what appears to be a new and developing jurisprudence. Consequently there are factors which may be argued and developed in future cases. This initial analysis will be enriched by the evolving law.

  43. I am conscious also that this award was made by a jury. There is well developed jurisprudence that an appellate court should be slow to interfere with an assessment of damages by a jury. However, such assessments are subject to review.

  44. There is no doubt that this is a case where a jury would be entitled to award substantial damages. But the damages awarded must be fair and reasonable and proportionate.

  45. Having considered the facts and all the circumstances of the case, including the nature of the injuries of the plaintiff, the law on general damages for personal injuries, noting (but not applying) the Residential Institutions Redress Act, 2002, and making reference to the conduct of the defendant in admitting his guilt at an early stage of the criminal proceedings, I am satisfied that the sum of €600,000 awarded by the jury is so far in excess of a reasonable award of compensation that it is disproportionate and should be set aside. Therefore, I would allow the appeal on the assessment of damages.

  46. The next question is the appropriate level of the award of damages. Once again I note that this is a new area of law and that it will be informed by jury awards and cases in the future. I anticipate that, in the way of common law, a corpus of cases will develop in the future to assist a Court in decision making.

  47. I am satisfied that there should be a rational relationship between awards of damages in personal injuries cases. Thus the level and limitations of awards of general damages in personal injuries actions are informative.

  48. The plaintiff is entitled to obtain as general compensatory damages a sum which will compensate her for the wrong she has suffered. The sum awarded should be fair and reasonable in all the circumstances. The sum should be proportionate to the injuries suffered by the plaintiff.

  49. It is an unfortunate fact that, over the last decade, there have been many cases of sexual assault and rape of children before the courts. Consequently there is judicial knowledge of this dark side of Irish society. In that context, while this is a very severe and serious case, it is not the worst case scenario. Therefore, it would not be a case in which to award the maximum sum of general damages.

  50. In assessing the injury suffered by the plaintiff it is relevant to consider the actions of the defendant. The defendant admitted the offence immediately on being interviewed by the Gardaí and pleaded guilty in the criminal trial at the first opportunity. He was sentenced to eight years imprisonment for the abuse in issue in this civil case. He leaves his wife to raise their four children. The steps taken by the defendant, his early admission, early plea, and apology, because they would have helped to alleviate the suffering of the plaintiff, are factors for consideration. Should he not have pleaded at an early stage or rendered an apology, the injuries to the plaintiff may have been further aggravated. The early plea of the defendant enabled the plaintiff tell her story in the criminal trial without having to suffer cross-examination. His counsel expressed an apology on the defendant’s behalf. While these matters are of limited relevance to the issue of compensation for the plaintiff, some weight may be attached to them. A comparison may be drawn to the situation if he had not taken such steps. Similarly, while an expression of remorse, through his counsel, is a factor, it is so rather to contrast the situation in this case with a case where it did not occur and where the conduct of a defendant may exacerbate the already occurring injuries of a plaintiff.

  51. In all the circumstances of this case, I am satisfied that an award of general damages to the plaintiff should be at the higher end of the range of awards of general damages in personal injury actions generally. Bearing in mind all the circumstances of the case, and the relevant factors, the very serious injuries to the plaintiff, yet allowing that they are not the worst case scenario, I am satisfied that the appropriate award to the plaintiff would be €350,000.

  52. Consequently, I would allow the appeal, set aside the award of €600,000 in respect of general damages, and substitute an order for €350,000 general damages.


Cases

Sinnott v Quinnsworth I.L.R.M. 523

Kealy v Minister for Health [1999] 2 I.R. 456

McEneaney v County Council of the County of Monaghan and Coillte Teo, Unreported, High Court, O’Sullivan J, 26th July, 2001

The People (D.P.P.) v Tiernan [1988] I.R. 250

Legislations

Residential Institutions Redress Act 2002

Residential Institutions Redress Act, 2002 (Assessment of Redress) Regulations 2002

Civil Liability and Courts Act 2004: s.22

Authors and other references

Compensation Advisory Committee Report, "Towards Redress and Recovery"

Guide to the Redress Scheme under the Residential Institutions Redress Act 2002, published by Residential Institutions Redress Board (2nd ed Oct 2004)

Book of Quantum, published by the Personal Injuries Assessment Board

Guidelines for the Assessment of General Damages in Personal Injury Cases, published by the Judicial Studies Board of England and Wales

Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland

Committee on Court Practice and Procedure [Ireland], " Inquiry to Examine all Aspects of Practice and Procedure relating to Personal Injuries Litigation", 29th Report 

Representations

Turlough O’Donnell, S.C., counsel on behalf of the respondent/plaintiff


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