by Stephen McGuinness , Michael Kelly, Shauna Marron March-16-2021 in Healthcare Law, Litigation & Dispute Resolution
On 6 March 2021, the Irish judiciary voted in support of the highly anticipated Personal Injuries Guidelines (the “Guidelines”) prepared by the Judicial Council’s Personal Injuries Guidelines Committee (the “Committee”). On 9 March 2021, the Cabinet approved the Guidelines which will take effect once Section 99 of the Judicial Council Act 2019 is commenced by the Minister for Justice and this is expected to occur “within weeks”. The Minister has indicated any cases before the Courts already, or already assessed by PIAB, will continue to be assessed by reference to the Book of Quantum.
The Guidelines will replace the Book of Quantum, which was last updated in 2016. The Guidelines will be reviewed every three years. The Guidelines are “mandatory” and will be used by the Personal Injuries Assessment Board (“PIAB”) in assessing claims and by judges in all court jurisdictions. While the Court retains its independence and discretion, should a trial judge wish to depart from the level of damages provided in the Guidelines, reasons for such departure must be stated.
Recent trends in the Court of Appeal
There has been a continuing trend in the Court of Appeal to reduce awards of damages and to try to offer consistency and predictability in personal injuries actions. This was noted by Mr Justice Noonan in the Court of Appeal decision in Emma McKeown v Alan Crosby and Mary Vocella1. Mr Justice Noonan noted that the level of award given in a case can depend on the trial judge, and that this may lead to an injustice. His judgment reiterated the need for judges to have regard to the Book of Quantum and their reasoning for arriving at any award of damages. Mr Justice Noonan also noted that the costs of insurance and social factors have a part to play in the assessment of damages.
With the introduction of the Guidelines it is expected that there will be more consistency in awards and that the Guidelines will assist with earlier settlement, as there will be more clarity as to the award that should be made. It is envisaged this will assist with decreasing the costs of insurance and legal costs.
While the maximum limit for general damages for catastrophic injuries has increased to €550,000, generally the Guidelines have decreased the damages available in less serious cases.
In line with the mantra of the Nolan v Wirenski2 judgment, which emphasised the importance of the concept that minor injuries should attract modest awards, the Guidelines have decreased the level of damages to be awarded for a number of minor injuries. The Guidelines have also introduced guidance on damages for injuries which had not previously been provided for in the Book of Quantum but are regularly seen before the courts. Below is an overview of some of the changes which can be seen in the Guidelines.
Guideline awards for Facial Injuries
The Guidelines have introduced dramatic reductions in relation to facial injuries, particularly minor facial injuries.
The differences, as set out below, for minor injuries to the face, are significant:
|
Injury |
Book of Quantum |
Personal Injuries Guidelines |
|
Minor cheek fracture |
€21,200 - €42,200 |
€500 - €6,000 |
|
Minor nose fracture |
€18,000 - €22,100 |
€500 - €3,000 |
|
Minor jaw fracture |
€21,200 - €47,100 |
€3,000 - €12,000 |
|
Loss of one tooth |
€10,300 to €12,700 |
€3,500-€8,500 (front tooth) €1,500-€3,000 (back teeth, per tooth) |
Guideline awards for whiplash
The Guidelines specifically refer to whiplash claims and note that allegations of his type are easily made and not easily disproved. The Guidelines advise that the Court should avoid making a small award without properly investigating the claim. The Book of Quantum allowed €19,400 for whiplash type injuries, which fell under the category of minor neck injuries with a full recovery expected. In contrast, the Guidelines allow for between €500 and €12,000, for minor neck injuries dependant on severity and time for recovery.
Guideline awards for Shoulder Injuries
However, it is not only minor injuries that will see a reduction in damages. The Guidelines set a limit of €100,00-€150,000 for the most severe shoulder injuries involving damage to the brachial plexus nerves and €40,000 - €75,000 for serious shoulder injury which includes damage to the lower part of the brachial plexus including sensory symptoms and weakness of grip. While there was no direct comparable in the Book of Quantum, a significant shoulder injury, such as an Erb’s Palsy type injury, being weakness or paralysis of the muscles in the arm, would ordinarily have received a much higher award for general damages in the Courts.
Guideline awards for psychiatric injuries
The Guidelines also provide for psychological injuries, whereas the Book of Quantum did not. Section 4 of the Guidelines restates the well-established common law principle that “recovery is permitted only in respect of recognisable psychiatric injury”. This section creates two categories for psychological injuries, specifically “Psychiatric Damage” and “Post Traumatic Stress Disorder”. Damages in relation to claims that fall within these categories are limited to a maximum of €170,000 and €120,000 respectively.
Guideline awards for chronic pain
The Guidelines have also introduced damages for chronic pain, divided into damages for Complex Regional Pain Syndrome, ranging between €35,000-€95,000 depending on severity and other pain from €30,000 to €75,000. This is a welcome development as injuries of this nature created a significant degree of unpredictability as to likely award levels.
Summary
The new Guidelines are certainly a step in the right direction. Some interest groups have argued that the reductions do not go far enough while others say the reductions go too far. However, with a review of the Guidelines every three years, and continued judicial discretion and independence, further progress can be made in bringing award levels in line with other jurisdictions and addressing any concerns which may arise.
The downward trend will also see more civil claims being litigated in the District Court and Circuit Court rather than High Court, which will result in a significant reduction in legal costs.
The most welcome element of the guidelines is that they will bring some much needed predictability into court awards, which in turn should create an easier environment for the early resolution of personal injury claims.
The Guidelines and the levels of damages attributable to the different categories of injury can be viewed here.
[1] [2020] IECA 242
[2] [2016] 1 IR 461
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About the Authors
Stephen McGuinness
Stephen is a partner in the Healthcare team at Hayes solicitors. Stephen specialises in the defence of medical and dental negligence claims taken against hospitals as well as individual medical and dental practitioners.
Michael Kelly
Michael is an senior associate solicitor in the Commercial Litigation & Dispute Resolution team at Hayes. He has experience advising commercial clients with respect to a wide variety of issues, in particular restructuring and insolvency cases. He regularly acts for receivers, liquidators and examiners in High Court and Commercial Court proceedings.
Shauna Marron
Shauna Marron is a solicitor in the Healthcare team at Hayes solicitors. She specialises in the defence of medical and dental negligence claims taken against public hospitals as well as medical and dental practitioners.
Shauna joined Hayes solicitors, in 2017, as a trainee solicitor and qualified in 2019.