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ISME Assessment of the Judicial Council Personal Injury Guidelines

The Judicial Council published its personal injuries guidance on 6th March. These guidelines provide clarity and explicit guidance where previously absent. However, they remain guidelines only. Their status is not mandatory, and the Court retains discretion to depart from them, but must state its reasons for going so.

The headline change of course has been the alteration to minor injuries, which now have a nominal cap of €12,000. This should bring most within the remit of the District Court, where legal costs are fixed by scale. This is subject to some qualification below. The Personal Injury Assessment Board (PIAB) will also be bound by the new guidelines once they are established by law.

The Justice Minister has said these guidelines will apply only to injuries that have not yet been assessed by PIAB. On the current timelines it takes to assess awards, this suggests a lag of up to two years before all injuries are assessed under the new guidelines. There will therefore be an overlap between the 2016 Book of Quantum and the new guidelines, with pre-existing cases being assessed under the former.

Awards for moderate, serious and severe injuries will not be significantly affected, and in some cases, may be higher. This is not an issue for ISME: we have never sought reduction in damages for serious injuries, which in any case represent a negligible contribution to the cost of insurance.

On the positive side:

  • Scarring and burns are dealt with on a stand-alone basis. This is a vast improvement on efforts to quantify scars on a “per-stitch” basis. There is also guidance on whether scars are visible or disfiguring.
  • For the first time, there is clear guidance on the issue of PTSD. This has been featuring more regularly in PI cases of late, especially in motor cases, and most especially in those involving injuries for minors.
  • There is solid, new guidance on pre-existing conditions and injuries. Courts may now only award for them to the extent that the claimed injury has made them worse.
  • There is more explicit guidance on how courts should treat multiple injuries, with the most serious injury dealt with first, and the court considering by how much to uplift the award for this by considering only the additional pain and suffering arising from the other more minor injuries.

On the downside:

  • Much commentary has focussed on the fact that reducing the minor injury category below €15,000, which nominally should mean that the District Court will handle the vast majority of contested PI claims. We consider this unlikely.
  • The downside of such clear instruction on the quantification of awards levels is that it does provide a clear road map to the legal profession on how to increase awards.
  • The guidance on PTSD, and the introduction of a new category for “Minor brain damage or head injury” (which interestingly states “if any” afterwards, means the likelihood of an increased volume of multiple injury claims. The combination of a minor neck injury, a minor brain injury, and PTSD would see the whiplash caseload staying in the Circuit Court, perhaps with an uplift in quantum.
  • There is no reference at all to the Civil Liability Act 2018 introduced in the UK. This has radically recalibrated downwards awards for minor injuries. So even with an average 52% reduction in awards for minor injuries, we remain far from addressing the 4.4 multiple established by the Personal Injuries Commission. Ireland will still be paying out extremely generous awards to people with little or nothing wrong with them.

There also remains real concern that the provenance of these guidelines is unconstitutional. While we in ISME were concerned at the entire process of awards setting being managed by the judiciary via the Personal Injuries Guidance Committee, our understanding at the start of this process in 2020 was that a small group of judges would sit “in conclave” and generate an informed set of guidelines which would be adopted “on-the-nod” by the judiciary. Frankly, we did not see a quasi-legislative process taking place, which eventually saw 146 of 168 members of the Judicial Council participate in a virtual meeting on Saturday 6th March, voting 83 in favour and 63 against, the guidelines. Were the 146 names recorded? Were their votes for or against recorded?

It would be a brave barrister who would challenge these guidelines in open court, but were they to do so, finding out who the 22 judges were who did not participate in the vote would be problematic. Did they recuse themselves because a family member was a practicing PI lawyer? It remains very difficult to see how the process of adoption of these guidelines by the judiciary, followed by their enactment by the Oireachtas, does not constitute a breach of Article 15 of the Constitution, which confers the powers to make laws exclusively on the legislature.

Personal injuries awards constitute approximately 42% of the cost of the typical motor insurance policy. On average therefore, we would expect to a reduction of 52% in minor injuries awards to produce a 22% reduction in premiums (excluding any reduction in legal costs). Only time will tell if this will happen, but we will push PIAB to maintain an accurate database of claims information to see if there is an increase in multiple injury claims as a result of the Judicial Council’s guidelines.