New Judicial Council’s Guidelines: End of the Personal Injury Gravy-Train?

In this blog, Patrick Barrett BL considers the personal injury guidelines created by the Judicial Council. This blog explores how the personal injury guidelines seek to address the perception that a compensation culture exists within Ireland, which has seen insurance premiums soar over recent decades. Mr Barrett argues in favour of a presumptive cap on damages, rather than a mandatory cap on damages, in order to pre-empt the inevitable constitutional challenge the latter attracts.

Patrick Barrett is a graduate of UCC (BCL, LLM) and a qualified barrister in his first year of practice. He works across a broad area of general practice but has particular exposure to personal injury and medical negligence cases.

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Personal injury awards are regularly reported in the media. In turn, this has fuelled a perception with consumers and lobby groups that awards are unjustifiably high. Blameless policy holders have seen their premiums soar over the last decade and as a result have directed their frustration towards the courts. However, are our judiciary ‘out of touch’ as many opine and are recent personal injury reforms enough to quieten the discontent?

First, the Judicial Council was established in late 2019 with a mandate to, inter alia, maintain excellence in the exercise of judicial functions and to promote public confidence in the judiciary and the administration of justice.[1] One of their first tasks was to overhaul the awards in our jurisdiction for minor to moderate injuries, while increasing the parameters for more catastrophic injuries. The Judicial Council Act 2019 provides that in assessing damages in a personal injuries action the court will have regard to the personal injury guidelines and ‘where it departs from those guidelines, state the reasons for such departure in giving its decision’.[2]

The Guidelines are a refurbished version of the Book of Quantum and outline types of injury and corresponding values of award that depend on the severity suffered. If we take the popularised claim of ‘minor neck whiplash/ soft tissue damage’, under the former Book of Quantum system a plaintiff could recover up to €14,800 for a soft-tissue back sprain. This went up to up €77,900 for a ‘severe’ injury incurring shoulder damage. In November 2018, the Personal Injuries Assessment Board (PIAB) issued whiplash injury data resulting from road accidents that involving analysis of approximately 4,500 awards made in the first six months of 2018. It reported that 70.8% of all personal injury motor cases assessed by PIAB were whiplash related. For some, the Circuit Court’s jurisdiction of €60,000 in personal injuries cases have acted as a siren’s lure. However, the new Guidelines can now award minor neck whiplash/soft tissue injuries a mere €500 (for those physically recovered within six months). This is a significant departure from the Book of Quantum. Further, the moderate shoulder injury maximum is halved to €35,000. Whether this encourages plaintiffs to exaggerate injuries to maximise awards is a common argument, especially where injuries are difficult to assess with accuracy such as back pain or psychological trauma.

There is the argument the old system bred a compensation culture, reflected in the dicta of Mr. Justice Twomey in O'Connell v Martin; Ali v Martin:

[A] defendant […] is in a lose/lose situation regarding unmeritorious claims by plaintiffs […] with limited means, since (1) if the defendant fights the unmeritorious claim and wins, she “loses” because her legal costs are unlikely to be paid by the impecunious plaintiff, or (2) if the defendant settles to avoid incurring those legal costs, she “loses” by paying money to an undeserving plaintiff.[3]

This joined up thinking has spearheaded lobby arguments that undeserving plaintiffs cannot be allowed prosper to the detriment of policy holders. Further, the PIAB’s finding that the average soft tissue award was €19,066 in general damages in 2018.[4] Contrast this with the United Kingdom’s cap of £3,725 following legislative changes in their Civil Liability Act 2018 and we can see the merit in the new Guidelines. That said, they are not immune from challenge, especially their constitutionality.

The right to damages is tied to strong constitutional protections that provide for the right to bodily integrity,[5] personal proprietary rights,[6] and the right to the administration of justice.[7] Whereas damages in tort fall under the traditional remedy of restitutio in integrum, ie, to ‘put the plaintiff in the same position as he or she would have been if the tortious act had not occurred’.[8] However, as this is not always possible it is an internationally accepted practice that a monetary award follows to compensate a victim. Therefore, what is a fair determination of such damages? To assess adequate restitution, the law considers two aspects:

(1) The injury itself, whether it be physical or mental, and the extensive nature of the injury including the extent the victim has or can recover. These are general damages.

(2) Associated costs, such as loss of income or medical care are referred to as special damages.

In the Court of Appeal decision of Nolan v Wirenski, Irvine J gives an in-depth assessment of factors the judiciary must bear in mind in the award of general damages in personal injuries, stating that the purpose of damages is ‘to provide reasonable compensation for the pain and suffering’.[9] This concept of ‘reasonableness’ has proved to be the catalyst in personal injury reform. Irvine J opined the process of assessment is objective and rational but personal to the plaintiff. She added that while ‘it is reasonable to look for consistency as between awards in similar cases, but the same kind of injury can have different impacts on the persons who suffer it. Therefore, the court should not have the aim of achieving similarity or a standard figure’. Therefore, it can be said that personal injury awards are a mixture of objectivity (as per the Guidelines) and subjectivity (the plaintiff). This aligns with the dicta of Denham J (as she was then) in MN v SM where she said there was three elements the courts need to consider, ‘fairness to the plaintiff, fairness to the defendant, and proportionality to the general scheme of damages awarded by a court, fall to be balanced, weighed and determined’.[10] Further, there must be a balance between our strong constitutional protections that provide for the right to bodily integrity, proprietary rights, and the right to access to the courts versus the argument that proprietary rights should yield to ‘exigencies of the common good’ as per Article 43.2.2°. In other words, the common good is served by reigning in our generous compensation and aligning it with other jurisdictions. However, any form of a mandatory cap on awards is open to constitutional challenge so an exact comparison with other jurisdictions is a fallacy. Any limitation may be seen as an ‘unjust attack’ on Article 40.3 personal rights. A much better model would be a presumptive cap, one which the judiciary can depart from under special circumstances, much like the Judicial College Guidelines in England and Wales.

At present, a judicial review of the Guidelines is pending before the courts. The applicant is seeking certiorari orders quashing the assessment of the Personal Injury Assessment Board in respect of their claim as well as the Judicial Council’s decision to adopt the new personal injuries guidelines in March. It is with keen interest that practitioners, litigants, insurance bodies and policy holders watch this challenge as its effects will reverberate across all sectors of industry. Lady Justice’s scales will have to balance public interest concerns against constitutional rights; something that will affect us all.

[1] Judicial Council Act 2019, s 7(1). [2] ibid s 99. [3] [2019] IEHC 57 [37]. [4] Personal Injuries Assessment Board, ‘Whiplash Injury Data’ Personal Injuries Assessment Board News (November 2018). <https://www.piab.ie/eng/news-publications/news/PIAB-PUBLISHES-ROAD-ACCIDENT-WHIPLASH-INJURY-DATA> accessed 11th January 2022. [5] Constitution of Ireland, Article 40.3.1°. [6] ibid Article 40.3.2°. [7] ibid Article 34.1°. [8] Personal Injuries Commission, Second and Final Report of the Personal Injuries Commission (July 2018) 4. [9] [2016] IECA 56. [10] [2005] IESC 17.