#5413 - Damages Introduction - Irish Tort Law

Damages – An Introduction

Swaine v Commissioners for Public Works (SC 2003)

Facts

1. The plaintiff developed a nervous condition after having been exposed to large quantities of asbestos during his employment.

Issue

• Exemplary Damages

Judgment (Keane CJ)

• Aggravated damages are to be awarded by virtue of

  • the manner in which the wrong was committed (oppressively, outrageously or arrogantly)

  • the conduct of the defendant after the wrong (refusal to apologise or ameliorate the harm done or threats of repetition)

  • the conduct of the defendant and/or his representatives in the defence of the wrong up to and including the trial of the action

• There are other circumstances, and in general these must be part in recognition of the added hurt or insult to the plaintiff and also part in recognition of cavalier or outrageous conduct on the part of the defendant.

• In negligence cases, these grounds do not typically arise and if they do they are not generally grounds for increasing the amount of compensatory damages.

  • reason 1: a driver who was driving drunk and caused little damage would not be as liable for as much as a sober and conscientious driver who caused a lot of damage through a momentary lapse of concentration.

  • reason 2: directly after a road accident the wrongdoer is unlikely to apologise, and subsequently even less so, as the matter has passed to his insurance company or solicitor

  • reason 3: the conduct in defence – conducted by the solicitor.

• Aggravated damages more correctly belongs to the areas of defamation and malicious prosecution, where the intention of the defendant is precondition to liability.

• There are personal injuries cases where aggravated damages have been awarded, but they have lain in trespass.

• Thus aggravated damages are all that should be awarded in this case.

McIntyre v Lewis (SC 1990)

Facts

1. The plaintiff was assaulted and taken into custody by the defendant Gardaí and was later acquitted of the only charge brought before him, that of having assaulted one of the defendants.

2. He sued them for assault, false imprisonment and malicious prosecution.

Issue

• General Damages – Exemplary damages

Judgment

1. Hederman J

   • Exemplary damages do not need to be specifically pleaded but it would be preferable if they were to allow the defendants to answer the case – although in this case the plaintiff's counsel indicated they were seeking an award over and above general damages they did not specify whether they were seeking aggravated or exemplary damages.

   • Where there is an abuse of power by officers of the state such as this, then the jury are entitled to award exemplary damages – however the amount awarded as exemplary damages should bear some relation to the amount awarded for general damages it should be reduced from 12x to 4x (i.e. from 60,000 to 20,000)

2. O'Flaherty J

   • Aggravated damages are awarded for conduct that shocks the plaintiff and are still compensatory in nature – exemplary damages are awarded as an expression of the jury's indignation at the actions of the defendant and are not compensatory.

   • In assessing exemplary damages there are three principles to be taken into account

     • the plaintiff must be a victim of the oppressive conduct

     • the judge must direct the jury to exercise restraint in awarding exemplary damages, to see that the punishment visited upon the defendant is not disproportionate

     • the means of the parties are relevant in assessing exemplary damages, as is anything that aggravates or mitigates the defendant's behaviour.

   • The award of exemplary damages is anomalous and should only take place in rare circumstances – in this case where the compensatory damages are quite modest, then 20,000 is sufficient.

   • obiter if the compensatory amount already includes aggravated damages, then exemplary damages should be a fraction rather than a multiple of that amount.

3. McCarthy J

   • Exemplary damages exist to express disapproval of the defendant's conduct – they are peculiarly within the remit of the jury to assess, as this represents the true indignation of the public at the defendants conduct.

   • On the facts of this case, involving a conspiracy by two protectors of the public to abuse their power in maliciously prosecuting the plaintiff, the jury have a right to award whatever exemplary damages they believe represents proper condemnation of the behaviour – the court should not interfere.

Conway v INTO (SC 1991)

Facts

1. The plaintiff was an eight year old child who missed a year of education, because the school she attempted to enrol in had been directed by the defendants not to enrol any children from her school.

2. The liability for this was established in another case and thus the defendants contested the award of damages only.

Issue

• Damages – Exemplary and punitive damages

Judgment

1. Finlay CJ

   • Exemplary damages arise out of the nature of the wrong and the manner in which it is committed and are intended to express the disapproval of the court at both and such damages are punitive in nature.

   • In appropriate cases such damages may be awarded as a deterrent so as to protect individual rights and the Constitution as guarantor of those rights.

   • In this case such damages are appropriate in light of as the right infringed was vested in the child by the Constitution and was of fundamental importance and the defendants acted with full knowledge and deliberation in infringing it.

2. Griffin J

   • (McCarthy J concurring) Exemplary damages may be awarded even where it results in a windfall gain for the plaintiff.

3. McCarthy J (concurred)

Shortt v Commissioner of an Garda Síochana

Facts

1. The plaintiff was framed by the Gardaí and imprisoned.

Issue

• Exemplary Damages

Judgment

1. Murray C.J.

   • Exemplary damages are intended to mark the Courts disapproval of the defendant's conduct, punish them for flouting the constitutional rights of others and deter others from attempting to do the same.

   • The courts' power to award exemplary damages are, for the above reasons, not limited by concerns of double compensation, nor are they limited by the vicarious nature of the liability.

   • obiter: The restrictions in Rookes v Barnard have no application in Irish law.

2. Denham J. (concurring – agreed with Muray CJ)

3. Hardiman J.

   • Punishment and deterrence are interlinked aspects of an award of exemplary damages.

   • In case of a breach of constitutional rights, there is a public interest in deterring repetition of such behaviour through this variety of damages.

   • Hardiman J sees a dichotomy between punitive and exemplary damages.

4. Geoghegan J. (concuring – agreed with Murray CJ and Hardiman J

5. Fennelly J. (concurring – agreed with Murray CJ and Hardiman J)

Reddy v Bates (SC 1983)

Facts

1. The plaintiff was injured in a car accident and was awarded general damages

Issue

• General damages

Judgment

1. Griffin J

   • The award made for lost earnings was larger than the actuarial figure – in addition it failed to take into account risk of unemployment, marriage, illness or injury, but as these were not canvassed by the defence they cannot be taken of.

   • Although the damages awarded for a housekeeper was higher than I would have awarded it is within the range of damages that could be found on the evidence and the court will not interfere with it.

   • Where a plaintiff has already been awarded enough to cover her prospective losses, to provide for her bodily needs and to enable her to live in comparative comfort then general damages should reflect these facts – the general damages in this case should be reduced.

   • When the jury has assessed damages across a number of headings they should then consider whether the total is fair compensation in all the circumstances, or whether it is out of proportion to the damage suffered – one of the circumstances to be taken into account is the money that could be obtained through prudent and careful investment.

2. Hederman J (concurred with Griffin J)

3. McCarthy J

   • A number of principles must be taken into account when awarding damages

     • The plaintiff must concrete evidential basis for calculating direct monetary loss

     • Future loss must be based on a combination of an appropriate multiplier applied to a reasonably accurate continuing item of loss and once established can be modified in light of circumstances such as marriage, taxation and prospects of employment.

     • Where each individual figure of a total is supported reasonably on the evidence, the amount of that total is no grounds for interference – however in reviewing these damages the Court can look to both the individual constituents and the award as a whole.

Cooke v Walsh (SC 1984)

Facts

1. The plaintiff was hospitalised as a result of road accident involving the defendant and suffered brain damage..

2. The defendant appealed the damages awarded claiming that they were excessive.

Issue

• Damages

Judgment (Griffin J)

• In light of the high rates of unemployment, where a damages for loss of future earnings are concerned there should be a substantial reduction in the multiplier to take account of probable unemployment.

• As the plaintiff does not appreciate his condition and thus is spared the mental suffering that normally goes with quadriplegia general damages should be of only a moderate amount.

• per McCarthy J dissenting

  • It should not be assumed that the current rate of high unemployment will continue for the forty year period in which damages are awarded.

Sinnott v Quinnsworth (SC 1984)

Facts

1. The plaintiff was...