Supreme Court allows appeal against inadequate damages award for child losing sight of one eye due to lawnmower injury.

THE SUPREME COURT

5/01

Murphy J.

Geoghegan J.

Fennelly J.

PAUL ROSSITER (A MINOR) SUING BY HIS MOTHER AND NEXT FRIEND TRACEY ROSSITER

-v-

DUN LAOGHAIRE RATHDOWN COUNTY COUNCIL

JUDGMENT delivered the 31st day of October, 2001 by FENNELLY J.

The infant plaintiff, Paul Rossiter, has, for practical purposes, lost the sight of his right eye. He appeals against the award of

£120,000 made in his favour by Johnson J in the High Court, stating that it is inadequate.

The Plaintiff was born on 2nd December 1987 and lives with his family in Bray. At the time of the accident the family lived in Dun

Laoghaire. On 23rd March 1997, the Plaintiff had been playing football after school and was passing at or near Fitzgerald Park,

Dun Laoghaire, when a piece of wire was propelled from a lawnmower which was being operated by the second named

defendant/respondent on behalf of the first named defendant/respondent. It struck him in the eye. The Plaintiff sued the

defendants. Johnson J found them liable. There is no appeal on liability. The damages were assessed as follows:

(i) Loss of job opportunity £30,000

(ii) General damages £90,000

Total £120,000

The Plaintiff naturally suffered extremely severe pain. He fell to the ground. He removed the piece of wire from his eye. He was

admitted to the Eye and Ear Hospital, where he underwent several operations. On admission, an exploratory operation was

performed. He had suffered a perforating injury to the eye with much bleeding. As the haemorrhage cleared, he developed a

right retinal detachment. On 18th April, he had very major surgery: a right pars plana vitrectomy with drainage of the choroidal

haemorrhage. An attempt was made to reattach the retina. However, macular scar tissue at the centre of the reattached

retina resulted in almost total loss of vision in the right eye. At most, he has been left with some peripheral vision.. He has also

developed a cataract. His left eye was unaffected

The Plaintiff was in hospital until late May. He was able to return to school for only a few weeks at the end of the school year.

Due to the need to wear a protective eye patch, he suffered some taunting and bullying at school, while still in Dun Laoghaire.

He was then in 4th class. He missed the entire of 5th class, apparently due to the school’s concerns about the plaintiff’s safety

and worries about insurance. He seems to have caught up since the family moved to Bray.

The trial court had the benefit of a very full and helpful report, which was admitted in evidence, from Ms Mary J. Feely,

Vocational Rehabilitation Consultant. She reported that the Plaintiff is the eldest of a family of eight children. His father is a

kitchen porter in a pub. His mother is a homemaker. At the time of her report (May 2000), he was attending St Peter’s National

School in Bray. He had progressed to the Cabinteely Community College by the time of the trial in the High Court. His school

reports did not, in her view, indicate a high level of academic attainment. He had, however, good general ability. She evaluated

him, on the basis of tests, as being of at least average general intelligence. So far as his capacity for physical work is

concerned, he has reasonable average dexterity which is quite adequate for most general manual tasks. She reported on the

effects of his visual disability: he had impaired judgement of depth and distance. He is liable to run into people when playing

games. Sometimes he crashes into objects, doors etc., on his right side.

Ms Feely’s report and evidence are particularly relevant to the employment effects of the injury. She said:

"Monocularity is a much more significant factor for some people more than others. Those with capacity to develop a

career based on intellectual ability and high academic achievement will have a wide range of choices in the first

instance, and the disability would simply reduce that range. For a boy who may be dependent to a considerable extent

on physical capacity, which would lead to limited options in the first instance, the repercussions can be greater. A not

inconsiderable amount of jobs within that category would be either beyond his capacity, or many work environments

could pose some potential risks to himself, to others, or to his residual vision."

She considered that, within the social and educational context in which he would be likely to seek employment, apart from

physical and visual demands, he would suffer a reduction in options both in terms of the employment of which he would be

capable, but also the locations at which he could safely work. In particular, she would rule out working at an unprotected

height, which would exclude many construction-related jobs. He could not operate forklifts or even work in areas where there is

moving machinery. Ms Feely acknowledged the impossibility of predicting what the plaintiff might do in life. This would be very

dependant on the outcome of his secondary education. Here it should be noted that his former teacher gave evidence that he

would not be likely to get more than an ordinary level leaving certificate. In essence Ms Feely thought he would be at risk of

suffering some general disadvantage as a result of his disability.

Johnson J explained his assessment of the damages as follows:

"The Plaintiff has suffered the loss of an eye. In addition he suffered disruption of his schooling; he suffered, I have no

hesitation at all, a great deal of taunting and bullying because of it, but he is an impressive young man; I have little or

no doubt that he is going to make his way in the world.

He is working well at the present time as far as I can make out but in addition to that he is doing an evening job every

day of the week for half an hour, and thereby earning additional money; this is indeed, to be commended. .......

However Paul has been left without a right eye and this is a very great impediment to go through life with. It may or

may not interfere with his income but undoubtedly will interfere with his job opportunities in the future. It will also

interfere with his enjoyment of life and a great number of sports and other activities, which he might or might not have

become involved with, would have to be, at least handled with a great deal of care but because he now has only one

eye left and that is of course vulnerable ..... as to value of the eye at the moment, I am going to make a stab at it

because I am not quite certain what the present rate is but I am going to put a figure on a boy of fourteen losing an

eye which is going to be with him for the rest of his life and he cannot do anything about it, I am going to put an all in

figure of £90,000 on that. For the loss of job opportunity I will add another £30,000 making in all a figure of £120,000. I

will make an Order for that amount Decree for £120,000."

The Plaintiff appeals against both headings of the award. It should be noted that the evidence of an actuary was given over

the formal objection of the defendants as to the capital value of £1 per week from the ages respectively of 18 and 22 . No

other figures were given in evidence to enable a proper actuarial assessment to be made of the likely loss of earnings, if any, of

the Plaintiff over his lifetime. Nor, given the age of the Plaintiff and the views of Ms Feely could any such figures be conceivably

advanced. Hence, the sum of £30,000 represents the considered assessment by the learned trial judge of a sum for possible

loss to the Plaintiff of employment opportunity by reason of his disability. Given the uncertainties so well explained by Ms Feely

in her report, this was the only approach he could take. Undoubtedly, the effects on future employment prospects are an

element that must be taken into account in assessing the Plaintiff’s damages. However, in my view, it should be considered as

an element of the general damages. In Reddy v Bates [1983] I.R. 141, to which the parties have referred, though not on this

point, McCarthy J stated that “in the calculation of future loss, that evidence must include a satisfactory basis of assessment

by way of an appropriate multiplier being applied to a reasonably accurate continuing item of loss." I prefer to approach the

matter, for the purposes of the appeal, on the basis that the award is a single one of £120,000.

As it happens, Reddy v Bates also contains a restatement of the test to be applied by this Court in deciding whether it should

interfere with an award of general damages made in the High Court for personal injury. Griffin J expressed himself thus:

“It is well settled that this Court cannot set aside the verdict of a jury on the grounds that the damages are excessive

unless, adopting a view of the facts which is most favourable to the plaintiff, no reasonable proportion exists between

the amount awarded and the circumstances of the case..”

He cited McGrath v Bourne (1876) I.R. 10 C.L. 160 and Foley v Thermocement Ltd (1954) 90 I.L.T.R. 92. McCarthy J said:

"In order to warrant interference with an award of general damages, the disparity between the views of the individual

members of this Court and each item of the award, however large it may be expressed in isolation, must be a significant

percentage of that item of the award and, as a general rule, should not be less than 25 per cent. ..... This Court should be

reluctant so to interfere and, in particular, .... it should relatively petty paring from, or adding to, awards."

It might be thought that the fact that damages of the kind at issue are no longer assessed by juries would undermine the

rationale underlying these dicta. However, Blayney J, speaking for a unanimous Supreme Court, in Dunne v Honeywell Controls

Ltd and another [Unreported 1st July 1993] stated that the “the approach of the courts to an appeal against the quantum of

the damages awarded remains the same as before [the Courts Act 1988] with one slight qualification.” That is:

“Since the findings of the High Court judge in regard to the injuries and the medical evidence are set out in detail in the

judgment delivered in the case, the Court no longer has the task of adopting the view of the facts most favourable to the

plaintiff. The decision is based on the findings of the High Court judge.”

The more or less unvarying test has been, therefore, whether there is any “reasonable proportion” between the actual award of

damages and what the Court, sitting on appeal, “would be inclined to give” (per Palles C.B. in McGrath v Bourne, cited above.

Lavery J, in Foley v Thermocement Ltd slightly inverted the language by posing the question “whether there is a reasonable

proportion between the sum [awarded and the appeal court’s assessment] or whether the verdict is an entirely erroneous

estimate of the damage or is plainly unreasonable.” The test is one for application as a general principle, even if McCarthy J, in

Reddy v Bates (page 151) suggested a possible rule of thumb, the need for at least a 25% discrepancy. That is no more than a

highly pragmatic embodiment of his very proper counsel against “... relatively petty paring from or adding to awards.” In this

respect, it seems to me that this Court is no longer bound by the special respect due to a jury verdict. On the other hand, it is

not a court of first instance. It should only interfere when it considers that there is an error in the award of damages which is

so serious as to amount to an error of law. The test of proportionality seems to me to be an appropriate one, regardless – it

need scarcely be said – of whether the complaint is one of excessive generosity or undue parsimony. It should, of course, be

recalled that this test relates only to the award of general damages, as explained by McCarthy J in a further passage from the

same judgment.

Turning to the submissions made on the appeal, the plaintiff takes particular issue with the failure of the learned trial judge to

break down the award into separate sums for past and future pain and suffering. It is asserted that, in this way, the learned

trial judge failed to have sufficient regard to the several aspects of pain and suffering of the plaintiff up to the date of the trial.

Counsel for the plaintiff, Mr Reidy S.C., drew attention to the case of Carroll v Clare County Council [1975] I.R. 221. In effect,

therefore, it is claimed that the assessment of damages under separate headings is better suited to ensuring that a plaintiff is

fully compensated for all of the elements of damage he has suffered. This argument exemplifies one of two schools of thought

have debated this issue over many years. The contrary view, powerfully represented at one time, was that the division of an

award– in particular, in an issue paper for a jury, tended to inflate awards. It seems clear that it was in reaction to this second

line of argument that this Court introduced the corrective element described thus by Griffin J in his judgment in Reddy v Bates:

“In a case .. .where damages are to be assessed under several headings, the jury, having added the various amounts awarded

and having arrived at a total figure for damages, should consider the total sum (as should this court on appeal) for the

purpose of ascertaining whether the total sum is, in the circumstances of the case, fair compensation for the plaintiff for the

injury suffered or whether it is out of all proportion to such circumstances.”

It is not inappropriate to sound one note of warning about unduly literal reliance upon that passage. Griffin J cited as the

particular justification for having regard to the total sum the fact that “notwithstanding the ravages of inflation, a very

substantial income can be obtained from a large capital sum, while preserving the capital intact.” Circumstances change with

the economic cycle. We now live, at least for a time, with comparatively stable prices and low interest rates. In reality, high

interest rates usually mirror and compensate for the diminution in the value of money.

In Carroll v Clare County Council, Kenny J, at page 230, complained that the Court had “been severely handicapped in its task

of reviewing the damages by the failure to ask the jury to assess separately the general damages up to date of trial and those

from that date for the future.” He recalled the many occasions on which the Court had reiterated this point, citing, in particular

O’Leary v O’Connell [1968] I.R. 149. In the latter case, Walsh J said (page 155):

“Here again, it is opportune to indicate that it would be highly desirable in cases of damages, where several elements go to

make up the damages ultimately to be awarded and where certain decisions of fact as to future earning capacity and such like

have to be decided by the jury before awarding the damages , that the jury should be asked to award damages separately

under the various heads which arise in the case so that it may be possible for the parties and, in the event of an appeal, for

this Court to know what was the finding of the jury on the relevant issue of fact which went to deciding the amount of

damages which should be awarded under each heading.”

The reason then for the assessment of damages under separate headings is to facilitate the Court in the performance of its

function as a court of appeal. It is not designed to ensure that the court awards to the plaintiff an adequate sum of damages

under each heading. It has been pointed out in this Court that it is not required to compute damages under distinct headings

when it assesses them on appeal. Where the damages are, as they are now, assessed by a judge sitting alone, it remains

equally necessary that the Court be in a position to discern the findings of fact upon which damages have been assessed. It is,

perhaps, not strictly necessary to assess them under separate heads, so long as the judge makes clear findings of fact, as the

learned trial judge has done in this case. Nonetheless, it is likely, in many cases, to be of assistance to continue the practice.

In deciding how to structure his assessment of damages, it will be a matter for the trial judge to decide the extent to which

separate heads are likely to be of assistance in the particular circumstances of the case.

The special aspect of the structure of the award in this case is the assessment of a distinct sum for the damage to the

plaintiff’s employment prospects. The learned trial judge has found as a fact– and was entitled to do so on the evidence – that

the impediment the plaintiff has “may or may not interfere with his income but undoubtedly will interfere with his job

opportunities in the future.” As I have said earlier, this element is an item of general damages. It is nonetheless helpful that the

learned trial judge assigned a separate amount to it. It enables the Court to exercise its judgment on the award as a whole. Is

£120,000 adequate?

The parties referred to a number of decided cases involving the assessment of damages for eye injuries. These may be a useful

guide but cannot be treated as in any sense definitive. The facts vary too much. In 1995, Costello J, in a short ex tempore

judgment, awarded £100,000 to a “little boy” who had lost the sight of one eye, as it happens, when stones were propelled at

him by a lawnmower. The age of the boy is not apparent, but he must have been at least ten at the time of the trial. He

suffered also from a bad squint. There is no mention at all of damage to employment prospects. In 1989, the Supreme Court, in

allowing an appeal from Murphy J, awarded £100,000 to a thirty five year old man. The facts were more complex. They appear

from the High Court judgment of Murphy J. Firstly, the plaintiff already suffered severely reduced vision in his left eye (only 5 to

10%). Secondly, he did not entirely lose the sight of his right (injured) eye. He awaited an operation, to be performed in the

space of five years when his sight would have deteriorated to the point where it was necessary. The prognosis was guardedly

optimistic. The plaintiff was employed on an apparently stable basis as an executive in a family firm. No separate sum appears

to have been identified in respect of damage to employment prospects.

It did not seem to be seriously contested, at the hearing of the appeal, that the allocation of a sum of £90,000 for the entire of

the pain and suffering of the plaintiff both past and future was, though proper, on the lower side of what would have been

permissible. Mr Reidy contended that it was a long way below a proper amount. Insofar as guidance can be derived from the

two cases mentioned, I am persuaded that it is significantly less than what should be allowed in respect of the heading of pain

and suffering alone.

Returning to the sum of £30,000 allowed for damage to employment prospects, it is, of course, impossible to consider this sum

in isolation. If the plaintiff had been a person already established in employment at the time of his accident, it is reasonably

likely that he would have been in a position to advance a credible actuarial case to justify the award of a capital sum for future

loss. That is, of course, to some extent speculative, but, at least, such a person would have had an objective basis of

comparison. Accepting the unavoidable element of speculation, it seems to me that there is a very real danger that the sum of

£30,000 would, as a once and for all single payment, represent inadequate compensation for the plaintiff’s lifetime

disadvantages in employment.

Considered as a whole the award represents a sum of £120,000 to cover: all the pain and suffering of the plaintiff to date

(including the disruption of schooling and the bullying at school); the fact of being a one-eyed person for the entire of the

remainder of his life with the accompanying defacement of his features, as well as the clearly determined damage to his

employment opportunity. In my view the sum of £120,000 does not bear a reasonable proportion to the compensation to which

the plaintiff is entitled. It is so low as to satisfy the test which I have mentioned earlier. In my view, the award should be

increased to £150,000.

Consequently, I would allow the appeal and substitute the sum of £150,000 for the sum of £120,000.