- Improper for the legal profession to undermine a substantive study of Ireland’s personal injuries problem, which was unanimously agreed by their peers
- It’s time to stop conflating soft-tissue injuries with catastrophic, life-changing ones
- Controlling damages will be primarily a legislative task, with judicial input
ISME, the Irish SME Association has today (2nd October) expressed its concern with a number of recent stories suggesting that members of the legal profession take issue with the findings of the Personal Injuries Commission, which published its second and final report on 18th September.
ISME CEO Neil McDonnell said, “ISME has made it clear that while it accepts the Commission’s diagnosis of our out-of-control damages regime, we do not agree with the Commission’s suggestion that it is the judiciary which should be tasked with fixing it, via a Judicial Council.”
“Judges have always indirectly set the level of general damages in the Book of Quantum, which simply reflects the average of awards made by different judges for differing degrees of injury severity. They are free to accept or disregard the Book of Quantum range values, with the result that over time, awards have spiralled upwards, out of any credible relationship with the ‘pain and suffering’ for which they are designed to compensate. In short, the reason the Oireachtas set up the Commission is because the current system is irretrievably broken.”
Comments made by a senior member of the judiciary at a recent medico-legal conference in Sligo suggested that she was critical of the findings of the Commission. Since no ISME representative was in attendance at the conference, and since the conference was concerned with issues of medical negligence and catastrophic injury, we cannot read any significance into the reported remarks.
However, ISME is most concerned at the repeated conflation of the issue of damages for catastrophic, life-altering injuries with the work that the Personal Injuries Commission was engaged to do. The Commission outlined explicitly in its terms of reference that it was predominantly tasked with analysing soft-tissue, ‘whiplash’ injuries, which constitute the vast bulk of personal injuries settlements in Ireland. It is inexplicable that any legal professional could be confused as to the subject matter of the Commission’s report. Yet in media broadcasts after the report’s publication, the public was subject to consistent muddling of the issues of general damages, special damages, and the emotional matter of catastrophic injuries. This has to stop.
For the record, the Commission did not analyse awards above €100,000; and the bulk of its work was focussed on minor injuries in the sub-€20,000 award category.
In welcoming the publication of the Commission’s report, the Chief Justice Frank Clarke said that ‘Overly rigid guidelines are as likely to lead to injustice as to improve things.’ ISME wishes to reassure the Chief Justice that no business-owner, motorist, home-owner, school principal, or crèche-operator seeks injustice as a solution to the insurance crisis they find themselves in at present.
However, we ask that the Chief Justice is cognisant of the injustices inflicted daily on policy holders. It is unjust when a plaintiff can refuse a PIAB settlement of €10,000, take it to court, get awarded only €500 more, but get costs of 42% on top. It is unjust when a plaintiff whose case is thrown out of the Circuit Court can extort money from a defendant by threatening a High Court appeal, which the defendant cannot afford. It is unjust when a false claimant, whose case is thrown out of the Circuit and High Courts, and who is subsequently convicted of perjury in presenting that claim, can avoid imprisonment, and be asked to repay only one third of the defendant’s costs. It is unjust that while the number of employer liability claims is falling, the cost of employer’s liability insurance is increasing. It is unjust for a crèche to be told that the children they care for will only be indemnified while they are playing indoors. It is unjust when festivals, sports clubs, and charities must desist from fund-raising activities which are absolutely normal in other countries because they cannot afford to indemnify them here. It is unjust when a burglar, apprehended in the act by Gardaí, can sue a store owner for injuries to his scrotum incurred in the commission of the crime. It is unjust when serial professional plaintiffs can withdraw falsified actions before the courts, yet suffer no moral hazard or punishment for the costs they have imposed on innocent defendants.
Concluding ISME’s CEO, Neil McDonnell added,
“Unfortunately, ISME believes that the only way to tackle these injustices is through legislation. But let the Chief Justice and the other members of the legal profession rest assured that no injustice will result for any genuine claimants from a general damages regime which is regulated in a similar manner to that of every other common law jurisdiction on the planet.”
For further information, please contact
Wayne Tobin, Press, Policy and Research Officer
T: 01 6622755