Personal Injuries Guidelines
The Judicial Council recently approved and adopted the new “Personal Injuries Guidelines” on the 6th of March 2021. These guidelines were prepared by the Personal Injuries Guidelines Committee which was established under the Judicial Council Act, 2019. The Guidelines aim to quantify the level of damages which may be considered fair and just damages in respect of personal injuries suffered by claimants. The guidelines will not come into effect until such time as the legislation as has been amended and will replace the current book of quantum.
The most significant difference between the guidelines and the Book of Quantum is that the Book of Quantum was compiled from the collection and correlation of personal injury awards between a certain period of time. The preparation of the Book of Quantum was not an examination of the awards made or an examination of the values assigned from a legal perspective. The guidelines sought to carry out such an examination and as such, have significantly changed the brackets of damages which can be awarded for a number of areas.
Making a monetary award for general damages for pain and suffering as a result of an incident/accident is an artificial and sometimes difficult task. A Judge must consider the pain and suffering that a claimant has and assign it a monetary value. The Judge must give due consideration to the circumstances of the accident, the circumstances of the claimant and the subsequent effect that the claimant has suffered to their everyday life. This due consideration can vary from Judge to Judge and has historically led to widely varying awards of damages for similar injuries and accidents. Although it is entirely within the discretion of a Judge to do so, it has led to claims that it has somewhat eroded the principle of equality before the law in such instances where similar injuries or similar circumstances can result in very differing awards. This has of course led to appeals on the basis of such comparators which, in turn, leads to additional costs for both parties.
The purpose of these guidelines therefore was to try to create some synchronicity between similar injuries/accidents whilst also leaving sufficient parameters to account for differing circumstances and/or personal features of each case. For this reason, the guidelines allow for wide parameters within which the Courts may operate for various injuries.
The Committee assessed the levels of damages awarded, the principles applied to assessments, guidelines to assist in classification of injuries and other factors to allow the promotion of consistency in the level of damages being awarded for personal injuries.
This allows the Court to retain its independence and discretion when making an award of damages with due consideration to the circumstances of the parties whilst making it mandatory for the Court to make its assessment on the basis of the guidelines but with a provision to depart from the guidelines when warranted to do so.
The general principles when making an award for damages is that the award must be fair and reasonable to both the claimant and the defendant and the award must be proportionate to the injuries sustained and to injuries or cases of a similar nature. In this regard it is important to note that the highest award which can be made for the most serious catastrophic injuries has a cap of €550,000.
It is anticipated that once the guidelines are in place, at the conclusion of each case a Judge will ask the parties to make submissions as to where, in its opinion, the injury (or dominant injury) sustained should lie in terms of the relevant bracket of damages. It should have regard to the terms of severity of the injury, the length of the time the injury has been suffered (or anticipated to be suffered) time and the presence and/or absence of other injuries or circumstantial considerations.
The Court will then give due consideration to the guidelines, the case heard, and the submissions of the parties before reaching his or her findings in relation to the appropriate award.
In the event that the Trial Judge considers it necessary to make a departure from the guidelines, he or she must give their reasoned explanation for same.
With regard to multiple injuries, the guideline values injuries separately. Where it is seen that it would be unjust or result in overcompensation if each injury was valued separately, and that it may be unjust or disproportionate to the Defendant, the dominant injury must be identified for the purposes of valuation. Any subsequent or lesser injury will then be factored in to uplift the value on top of the dominant injury award. This is to ensure that the claimant is fairly and justly compensated for all of the injuries suffered without a disproportion and unjust effect on the Defendant.
Any award made for multiple injuries must take into account injuries of a similar nature and, at all times in proportion to the maximum cap on the most catastrophic injury which can be received. The purpose of this is to have a scale of severity and suffering upon which a Plaintiff should be accurately placed.
As with the current practice, any pre-existing condition that is aggravated by injury will only be assessed for compensation in relation to the increased symptomology suffered by the claimant. This is to prevent overcompensation of a condition for which the Plaintiff was already suffering.
It is anticipated that the guidelines will be reviewed within three years of their adoption.
The guidelines now include new sections for psychiatric damage, chronic pain which encompasses various pain disorders, scarring and burns and skin conditions which were not previously dealt with by the Book of Quantum.
The guidelines will replace the Book of Quantum once the legislation has been amended however it is unlikely that the guidelines will have a significant effect on the majority of existing cases in the coming months. A certain crossover period must be allowed for those cases which have already been either assessed by the Personal Injuries Board or are already within the jurisdiction of a Court system. Once the legislation has been amended and the guidelines apply, it is likely that the guidelines will more appropriately apply to newly issued cases such as those not yet assessed by the Injuries Board.
Nevertheless, it is extremely likely that the guidelines and their anticipated effect on the Personal Injuries system will be taken into consideration by both claimants and respondents in terms of current claims and will likely have a smaller immediate effect on negotiations going forward.
The guidelines have regard not only to personal injuries claims within Ireland but also have regard to awards made for similar injuries in similar jurisdictions. The guidelines as currently introduced will have a significant positive downward recalibration of personal injury claims valuations at the low and mid-range level of injuries. This will affect which Court claimants issue their claims in and we are likely to see an increase in the amount of District Court litigation and an easing of the burden on the Circuit Court, at which level a vast majority of personal injuries litigation are currently issued. The guidelines will have a much lesser effect on upper-level injuries in circumstances where such injuries were always reviewed in light of the cap on personal injuries awards, currently at €550,000.
It is a difficult task for the judiciary to try to effect proportionality over personal injuries claims, particularly in circumstances where the reporting of an injury is a subjective exercise and each Plaintiff will describe their injury, symptoms and/or pain differently to the next and may also categorise pain in an entirely different manner than another Plaintiff. For this reason, the increased detail is very welcome to allow correct categorisation going forward.
In recent times, it has become more common for awards made by the Court to be appealed and ultimately reduced by the Appellate Court. The guidelines in this respect are a reflection of that change in attitudes to the award of damages which has been apparent within the Court system for some time now.
As readers may be aware, there has been lobbying for a much more uniform and regimented system to be put into place. This must be balanced with the independence of the Court system and the discretion the judiciary must have to allow such independence to continue. As a result of this, the brackets of the awards for damages are wide ranging, allowing for discretion of the Court to deal with each matter on a case-by-case basis and with due regard to the specific circumstances of each one.
Overall, however, the personal injuries guidelines do represent a significant reduction in the overall brackets of awards available to claimants and will have an effect on settlements and awards going forward on an escalating basis.
The guidelines represent a welcome detailed and proportionate overview of the personal injuries suffered by claimants and the awards they are likely to receive on the successful conclusion of their cases.
Should you have any queries in relation to personal injuries litigation, please do not hesitate to contact Donna Phelan or Conor White here at 01 296 0666.