ISMEs response to the Law Reform Commission on capping damage

Below you will find the response made by ISME to the Law Reform Commission on capping damage, you can read and download the LRC issues paper here.:

Read our submission in full here.

1: In your opinion, are there are any other constitutional concerns in addition to those discussed in Chapter 3 of this Issues Paper that should be considered in the Commission’s Report on this project?

Yes. We consider that the current proposal by Government to delegate consideration of quantum exclusively to the Personal Injuries Guidelines Committee (PIGC) of the Judicial Council presents a real risk of a breach of the separation of powers. In the absence of clear and explicit primary legislation prescribing the level of (or the principles for setting the level of) general damages, the guidelines set by the PIGC are very likely to face legal challenge. The letter of the Chief Justice to the Justice Minister is self-explanatory in this regard (Annex 1).

2(a): Do you consider that any of the models discussed in Chapter 4 satisfy the constitutional concerns raised in Chapter 3?

Yes.

2(b): If the answer to question 2(a) is “yes” please indicate which Model you consider would meet those constitutional concerns, and why?

We consider Model 1 best avoids the issue of a breach of the separation of powers by the judiciary, with the delegated power of amendment per Model 3. This is effectively how the Civil Liability Act 1961 functions now.

3: Is there any other model for capping damages in personal injuries cases, not considered in this Issues Paper, which you believe would be appropriate?

No.