Judges vote to adopt new guidelines to reduce personal injury awards

Barrister's Wig

6 March 2021

THE IRISH JUDICIARY body has voted in favour of adopting new guidelines aimed at reducing the amount of damages that can be awarded to claimants for personal injury cases.

The Judicial Council’s Personal Injuries Guidelines Committee’s draft guidelines to replace the guidance in the Book of Quantum – which gives an approximate level of damages for injuries – were submitted to the Council in December and adopted today.

The council said that the Personal Injuries Guidelines will provide greater certainty as to the level of damages likely to be awarded by a court if the case proceeded to trial.

The report on the draft guidelines states that the committee decided that a catalogue of injuries would be the most accessible and appropriate form for the guidelines to take.

“The catalogue now proposed is a list of injuries, ranging from the major to the minor, each of which has assigned to it a range or bracket within which an award should ordinarily fall,” the report reads.

“In individual cases, where the facts are exceptional and warrant a departure from the guided bracket, the court may depart from the guided bracket, provided that a justification is given for doing so as set out in section 22 of the Civil Liability and Courts Act 2004 (as amended).”

The Committee said it placed particular emphasis on injuries which are litigated frequently, “and especially those of up to 5 years’ duration”.

“The Guidelines give detailed guidance as to what level of damages should be awarded in these types of cases. However, they also allow for discretion for the judge to take into account the facts of individual cases.”

The guidelines, now that they have been adopted by the Judicial Council, take effect once Section 99 of the Judicial Council Act 2019 is commenced by the Minister for Justice.

‘Dismay’ 

Justice Minister Helen McEntee, who will bring proposals to Cabinet on Tuesday on how to implement the guidelines, said she hopes this will have a lasting impact on the award of damages in personal injuries cases.

“It is my hope that the new guidelines will bring consistency, reduce litigation and reduce awards, which are a major driver of insurance costs.

“The guidelines will of course require further consideration in the coming days and I will report on the implementation of the guidelines and the initial impact they have by the end of the year,” said McEntee, who previously indicated that she would propose a minor legislative amendment be made so that the Personal Injuries Guidelines take legal effect in respect of claims as early as possible.

The Personal Injuries Assessment Board said the guidelines, which will be used by both PIAB and the Judiciary to assess compensation in personal injury claims, will bring greater transparency and consistency to awards and “importantly they will reduce the overall levels of awards in Ireland which were until now significantly out of kilter with other countries”.

“For PIAB, as the main body charged with implementing these guidelines, what we hope they will achieve is more claims being settled through PIAB, and less cases going into costly and lengthy litigation,” PIAB Chief Executive Rosalind Carroll said.

Carroll said the next step for PIAB will be to examine the guidelines in detail to ensure the country’s systems and processes are ready when they become law.

Less impressed were the Alliance for Insurance Reform, who reacted with dismay at today’s publication and called on the government to dramatically reduce the proposed damages for minor injuries.

Peter Boland, Director of the Alliance, said he has written to An Tánaiste Leo Varadkar, in his role as Chair of the Cabinet Committee Sub-Group on Insurance Reform, to intervene immediately and cap general damages such that damages for minor injuries are reduced by an average of 80% compared to the previous Book of Quantum guidelines.

As part of drafting the new guidelines, the Committee carried out research as to how Irish court awards fare when compared to awards made by courts elsewhere, in particular, Northern Ireland, England and Wales.

Eoin McCambridge, managing director of McCambridge’s of Galway and director of the Alliance, said an 80% reduction on minor injuries would only bring Ireland down to where England and Wales currently are “and would still be nowhere near the equivalent damages in other European countries”.

For example, under the new guidelines, a minor thumb injury with no sprain or breakage was reduced from an average of €21,200 to €12,000 (-43%), the alliance says the same injury would receive damages of €4,582 in England and Wales.

“We are not talking about damages for serious injuries here. Where a person is seriously injured due the negligence of someone else, they must be properly compensated and that is what insurance is there for,” said McCambridge.

“What we are talking about are the bumps, bruises and mild, fully recovered whiplash injuries where treatment ends when the legal action is finished. We reward these injuries at a level unprecedented in Europe and these are the awards that are damaging Irish society.”

Likewise, Insurance Ireland the new guidelines were a step in the right direction but do not represent the comprehensive reform that it was seeking.

“Of particular concern in today’s announcement by the Judicial Council is the fact that for soft tissue injuries such as minor neck injuries, an award range of €500 to €12,000 is indicated,” CEO of Insurance Ireland, Moyagh Murdock, said.

“Interpretation of ‘ substantial’ is going to have a significant bearing on the awards, and there is still a risk of judges making widely varying awards of damages in respect of relatively comparable injuries.

Also of concern is that the new guidelines are not retrospective, which means any claims currently going through the system will still attract awards based on the old book of quantum regime.

Under consideration

Tánaiste Leo Varadkar said the government is committed to bringing down the cost and increasing the availability of insurance, especially for businesses and voluntary groups.

“We will now carefully consider what is set out in the new guidelines. We will have to see how they bed down over the next few months to see if any further action is needed,” he said.

“The important thing for government is that ultimately, the value of awards given in cases is consistent with the damage caused. Inflated personal injury awards inflate premiums and we want to make sure that doesn’t happen.”

The Judicial Council said the reduction in insurance costs was not the role of the Committee and that the answer to this depends upon whether or not or to what extent awards of damages made by Irish courts are responsible for the levels of insurance premiums in the state.

“If there is such a correlation, whether or not the cost of insurance in the State will be reduced as a result of the introduction of the Guidelines will depend upon whether any savings which will accrue to the insurance companies as a result of the Guidelines will be passed on to policyholders.”

Source the journal.ie

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