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Assessing ‘uplift’ for Multiple Injuries

    Where a plaintiff sustains multiple injuries, how are damages to be assessed? How is ‘uplift’ to be calculated? Is there a limit on the amount of ‘uplift’ that can be awarded?

    The Personal Injuries Guidelines

    The Personal Injuries Guidelines (‘PIGs’) (view here) apply to all personal injuries actions commenced on or after 24 April 2021. They were introduced to replace the Book of Quantum (which continues to apply where an assessment was made by PIAB prior to 24 April 2021 but was rejected or deemed rejected).

    The PIGs provide bands of damages for various types of physical and psychological injury, individually, but a question arises as to how damages are to be assessed where a plaintiff has suffered multiple injuries.

    Multiple Injuries under the PIGs

    The assessment of general damages in cases involving multiple injuries gives rise to special difficulty given that in the PIGs each injury is valued separately. The principal difficulty stems from the fact that there will usually be a temporal overlap in the injuries sustained such that if each injury was to be valued separately the claimant would be overcompensated to the point that the award would be unjust to the defendant and disproportionate when compared with other awards commonly made for other greater or lesser injuries. Each injury will, of course, cause additional pain and suffering which must be reflected in the award, but the question is how to ensure that the award will be just in light of the overlap of the injuries.

    To address this issue, the PIGs provide that the appropriate approach for a trial judge is:

    “where possible, to identify the injury and the bracket of damages within the Guidelines that best resembles the most significant of the claimant’s injuries. The trial judge should then value that injury and thereafter uplift the value to ensure that the claimant is fairly and justly compensated for all of the additional pain, discomfort and limitations arising from their lesser injury/injuries. It is of the utmost importance that the overall award of damages made in a case involving multiple injuries should be proportionate and just when considered in light of the severity of other injuries which attract an equivalent award under the Guidelines.”

    Applicable Principles

    In Lipinski (a minor) v Whelan [2022] IEHC 452 the High Court (Coffey J.) confirmed and adopted the procedures set out in the PIGS in relation to (a) the assessment of damages and (b) ‘uplift’ for multiple injuries (see paragraphs 10-14 of judgment). However, there remained a question as to how much ‘uplift’ might be appropriate in a given case.

    The Court also acknowledged s.99(1)(b) of the Judicial Council Act 2019 which provides that a court may depart from the PIGs but must, in its decision, state its reasons for so doing:

    Where the proviso applies, therefore, it not merely allows but requires the trial judge to depart from the Guidelines. This might arise, for example, where in the particular circumstances of the case under consideration, strict and inflexible adherence to the wording of the classification of injuries or the monetary bands of damages set out in the Guidelines would be in clear conflict with the overriding duty of the trial judge to at all times follow and apply the settled jurisprudence which applies to the assessment and award of general damages for personal injuries. It should be readily acknowledged, however, that such tension is unlikely to arise in straightforward cases where the relevant injury does not have atypical features and readily falls into one or more of the relevant defined categories in the Guidelines.”

    Proportionality

    In Meehan v Shawcove [2022] IECA 208 the High Court (Noonan J.) noted that the principle of proportionality, in the context of the maximum amount of general damages, features very prominently in the Irish jurisprudence, and said that in attempting to assess damages for multiple injuries under different categories in the PIGS:

    “whatever the values attributable to those categories may be, the court must strive to take an holistic view of the plaintiff and endeavour to place the plaintiff’s particular constellation of injuries and their cumulative effect on the plaintiff within the spectrum in a way that is proportionate both to the maximum and awards made to other plaintiffs.”

    Extent of uplift

    In McHugh v Ferol [2023] IEHC 132 the High Court (Murphy J.) pointed to an amount of uncertainty that had arisen in relation to the assessment of damages for multiple injuries. Having referenced the provisions to be found in the PIGS in relation to multiple injuries, the court said (paragraph 18):

    “Unfortunately the guidelines do not provide advice as to the process a court should undertake when assessing the ‘uplift’ to ensure that the claimant is fairly and justly compensated for all the additional pain, discomfort and limitations arising from their lesser injury/injuries. Coffey J., in his Lipinski judgment, did not set out the process whereby he arrived at an uplift in that case of €25,000 in circumstances where the main injury attracted €35,000.”

    Caounsel for the defendant in that case argued that any uplift to compensate a plaintiff for additional pain and suffering caused by other injuries can never be more than the award given for the dominant injury. Counsel for the plaintiff, on the other hand, argued that where a plaintiff suffers multiple severe injuries, the uplift of general damages might well exceed the general damages awarded for the dominant injury.

    Murphy J. referenced “the absence of specific guidelines as to the process to be undertaken in calculating an uplift” and held that the appropriate procedure was to:

    “place the additional injuries into the appropriate category within the Guidelines and thereafter discount the damages to be awarded to take account of the temporal overlap of injuries so as to fairly and proportionately compensate the plaintiff for all the pain and suffering occasioned to them.”

    In relation to the question of whether the ‘uplift’ might exceed the award for the dominant injury, the court gave an example of a hypothetical plaintiff who had been (to adopt the phrase used by the court) ‘mangled’ in a road traffic accident, sustaining multiple serious injuries, stating that:

    “It would hardly be just or proportionate were the court restricted to awarding him an uplift less than the main award to compensate him for all of the additional pain, discomfort and limitations arising from the lesser, though still extremely severe, injuries.”

    The court was of the view that there was nothing the PIGs to prevent the ‘uplift’ exceeding the award for the dominant injury, in an appropriate case.

    “It appears to me that a fair and transparent means of assessing what the uplift should be in any given case is to categorise each of the additional injuries according to the bracket that it would fall into were that the main injury and then discount the award to allow for the temporal overlap of the injuries. In this way, both parties can see precisely how the court arrived at its decision and the level of discount allowed for overlapping injuries. Any other method leaves the plaintiff and the defendant guessing as to how the court arrived at its decision.”

    Update: September 2023

    In Zaganczyk -v- John Pettit Wexford Unlimited Company & Anor [2023] IECA 223 the Court of Appeal agreed that the approach taken by Murphy J. in McHugh v Ferol in respect of any uplift to be applied had much to commend it. However, the CoA indicated that a helpful ‘reality check’ in terms of proportionality would involve consideration of how the overall award compared with other categories in the guidelines (this approach is specifically provided for in the introduction to the guidelines themselves – see above under ‘Multiple Injuries under the PIGs’).

    “Whatever mathematical approach is adopted, it is important not to lose sight of the global impact of all the injuries on the particular plaintiff concerned. The plaintiff is entitled to be compensated for all the suffering they have endured, be it from one or ten discrete injuries suffered at the same time. As the Guidelines suggest, some assistance may be derived from a consideration of how the overall award compares with other individual categories in the Guidelines. If an obvious mismatch emerges, this may suggest that the requisite proportionality has not been achieved. That is, in my view a useful exercise in the present case as appears further below and can provide a helpful ‘reality check’.”

    In this instance a second uplift in respect of psychiatric injury was overturned and the award reduced by reference to the relevant ‘bracket’ within the guidelines. The CoA reduced general damages from €90,000 to €60,000 (€35,000 for psychiatric injury and €25,000 for scarring):

    “The aggregate award in this case was €90,000 for general damages. I cannot accept that this is an appropriate sum to award a plaintiff who has recovered within three years. To provide a ‘reality check’ of the kind already mentioned, one might usefully look at some injuries that, under the Guidelines, attract an award at this level. Thus, severe and serious neck injuries causing fractures that may require spinal fusion leading to chronic conditions and significant permanent disability attract damages in the range of €70,000 to €100,000. Loss of one eye is valued at €80,000 – €120,000, total loss of hearing in one ear at €55,000 – €80,000. Total loss of smell and taste ranges from €60,000 – €80,000 and serious arm fractures where there is significant permanent residual disability whether functional or cosmetic fall into the €50,000 to €100,000 range. simply cite these examples to illustrate how this level of injury could not on any view be equated with the injuries suffered by the plaintiff in the present case.”

    Examples in Practice

    CaseDominant InjuryAwardSecondary InjuriesUpliftUplift %
    LipinskiModerate PTSD€35kScarring€25kc. 70%
    RochaWrist€40kClavicle, scarring, psychological€35kc. 87%
    McDonnellRotator Cuff€55kPsychological€20kc. 36%
    BroderickAnkle Fracture€65kPsychiatric€30kc. 46%
    McHughFoot (Serious)€60kPTSD, neck, back, hips€32.5kc. 54%
    ZaganczykModerate PTSD€35kScarring€25kc. 71%

    Last Updated: 21 September 2023