In the case of Paul Gore (A Minor) v John Walsh and Darren Walsh the Court of Appeal significantly reduced damages and sent the case back to the High Court for the issue of liability to be retried.

The Court of Appeal considered that the sums of €25,000 awarded for pain and suffering to date and €25,000 for pain and suffering into the future were grossly excessive to the point where it constituted an error of law and must be set aside. Judge Irvine considered a scar on the plaintiff’s back to be at the very lowest end of the cosmetic injury spectrum and that the award was not proportionate when viewed in the context of awards commonly made in respect of other categories of personal injuries of a more significant nature. Of particular importance, was the fact that the award was not objectively reasonable in light of the common good and social conditions in the State.

There were also a number of difficulties with the trial judge’s finding of fact in relation to liability. The act of negligence was not pleaded and the defendants were not on notice of it from the expert reports. The evidence of the expert in court was nothing more than supposition and speculation and there was no evidence to support the inferences of fact drawn by the trial judge. The alleged act of negligence which formed the basis of the trial judge’s finding of liability was never put to the defendants and therefore they were denied an opportunity to answer the allegation which was highly prejudicial to the defendants. However, the Court of Appeal felt that to dismiss the plaintiff’s claim would be unjust in circumstances where, on the adoption of a proper and correct approach, the plaintiff may be in a position to adduce evidence sufficient to warrant a finding of negligence and the issue of liability was remitted to the High Court for retrial.