Personal Injury Awards: The Tide is Turning?

It is over 6 months since the Personal Injuries Guidelines (“the Guidelines”) (as discussed in previous articles here: Judicial Council Guidelines & Judicial Guidelines)were commenced on 24th April last. The Guidelines were commenced in an effort to reduce and standardise awards in personal injuries matters, and also as a result of persistent pressure from the insurance sector, mainly policyholders. The question is whether the Guidelines have had the impact they are designed to have.

It is arguably too soon to analyse awards handed down by the Judiciary, as it takes anywhere from 12 to 24 months for a claim to filter through the Court process. Equally, we are faced with the reality that most actions taken are settled, with no data available in relation to the majority of these settlements. Therefore, analysis of the awards made by the Personal Injuries Assessment Board (“PIAB”) is key to examining whether the Guidelines have had any effect.

PIAB’s annual report, published on 27th July last (available herehttps://www.piab.ie/eng/news-publications/Corporate-publications/2020-Annual-Report.pdf), is the first steppingstone in the analysis of awards under the new regime. In the three-month period following the implementation of the Guidelines, a 50% fall in the average value of awards was seen. This has set the trend across the board and has been backed up by a further PIAB report entitled ‘PIAB Personal Injuries Award Values April 24th – 30th September 2021. This report has analysed a five-month period of the current regime and the results are as follows;

  • 2,649 claims assessed pursuant to the Guidelines;
  • Average award reduced by 40% to €14,233 (including special damages);
  • General damages awards reduced by 46% to €11,808;
  • Motor Liability claims reduced by 40% from to €13,230;
  • Public Liability claims reduced by 40% to €15,697;
  • Employers Liability claims reduced by 44% to €17,203.
  • Almost half (48%) of all awards made by PIAB were under €10,000, compared to just 12% of awards in 2020.

It is clear to see that the Guidelines have had a significant impact on the level of PIAB awards to date. The Government, amongst others have welcomed this evidence of reduction in awards since the publication of the Guidelines. The question remains however, is it here to stay?

Awards are part and parcel of personal injuries actions. It does not necessarily end there. This award must be accepted by both the Claimant and the Respondent. Early indications show that contrary to what PIAB initially thought would happen post Guidelines, Claimant acceptance rates have fallen by 14% compared to 2020. This means that unless the Claimant does not wish to continue the action, the next step is to initiate Court proceedings. This brings us back to whether the Guidelines will have a long-lasting impact, and whether the Judiciary will apply them as rigidly as PIAB have to date.

To date, there have been no specific decisions in relation to quantum by the Courts. However, it is expected that cases to which the Guidelines specifically apply will come before the Courts by the turn of 2022. However, it is noted that the Guidelines were not unanimously supported by the Judiciary, with a vote of 83 to 63 of the Judicial Council on 6th March last. It is also noted that certain members of the Judiciary have stated that the Guidelines “ do not change the law”. It remains to be seen whether the tide has turned for good.

GENERAL SCHEME OF THE SICK LEAVE BILL 2021

The General Scheme of the Sick Leave Bill 2021, providing for sick pay and leave, as announced recently by the Tánaiste will be phased in over a four year period from January 2022.  This new legislation will bring Ireland in line with its European neighbours and will oblige employers to provide a minimum number of paid sick days annually from 2022.  The scheme will commence with three days per year in 2022, rising to five days payable in 2023 and, seven days payable in 2024.

It will be the latest in a series of actions that have improved social protections for workers and the self-employed over the last five years, including:

  • paternity benefit
  • parental leave benefit
  • enhanced maternity benefit
  • treatment benefit
  • the extension of social insurance benefits to the self-employed

 

Sick pay will be paid by employers at a rate of 70% of an employee’s wage, subject to a daily threshold of €110. The daily earnings threshold of €110 is based on 2019 mean weekly earnings of €786.33 and equates to an annual salary of €40,889.16. It can be revised over time by ministerial order in line with inflation and changing incomes.

The rate of 70% and the daily cap are set to ensure excessive costs are not placed solely on employers, who in certain sectors may also have to deal with the cost of replacing staff who are out sick at short notice. The Bill is primarily intended to provide a minimum level of protection to low paid employees, who may have no entitlement to company sick pay schemes. The legislation will expressly state that this does not prevent employers offering better terms or unions negotiating for more through a collective agreement.

Employees must have a minimum of six months service with the employer to be eligible to receive statutory sick pay. The scheme applies to both fixed term and part time employees. It is also a condition of the scheme that the employee is medically certified as unfit to work.  The Employer must deduct taxes in the normal manner.  Once the entitlement to statutory sick pay from the employer ends, employees who need to take more time off may qualify for illness benefit from the Department of Social Protection subject to PRSI contributions.

Employers will eventually cover the cost of 10 sick days per year in 2025. It is being phased in to help employers, particularly small businesses, to plan ahead and manage the additional cost, which has been capped.

Employers should be aware that the draft legislation will not erode existing contractual rights where an employee’s current contractual entitlement to sick pay exceeds the amount of paid sick leave envisaged by the draft legislation.

As currently drafted, the bill does not provide for any further top up of salary for the employee and nor will any compensation scheme be provided for employers to assist them with the costs of sick pay.  Therefore, Businesses around the country must now make provision for this new regime and consider where changes to existing policies are required once the scheme is introduced. The right to sick pay will be legally enforceable by employees through the Workplace Relations Commission and the Courts. The scheme will be another arsenal in an Employees complaint against an Employer.  Employers need to recognise this and ensure that the correct policies and procedures are put in place in their workplace.   If you are an employer who is concerned about issues surrounding Sick Pay policies and need to review your employment contracts, contact our Employment Law Expert Anthony Shields by telephone on 021 239 0620 or by email: Anthony.shields@mdmsolictiors.ie

Dunphy  v O’Sullivan

This is another example wherein the Courts have not been persuaded to the view that the absence of any significant material damage to a Plaintiff’s vehicle is, in and of itself, a reliable indicator as to the likelihood or possibility of injury to the occupants of the vehicle, or indeed to the level of severity of any such injuries.

The claim arises out of a road traffic accident wherein the Plaintiff was driving his Mercedes taxi when it was struck from behind by the Defendant who was driving a Golf.  The Defendant did not deny that she drove negligently, the primary issue in the case was that the impact was so minor or trivial to be incapable of causing injuries to the Plaintiff as alleged.

The Plaintiff’s evidence was that immediately prior to the impact he was stationary at a yellow box as there was a line of traffic in front of him.  As this line began to move, he took his foot of the brake but before he moved, the Defendant’s vehicle collided with him propelling him forward.  The cost of the repairs to the Plaintiff’s vehicle was estimated at €563.82 which primarily consisted of labour and paint, no parts required replacement.  However, the Defendant’s vehicle endured quite extensive frontal damage which was estimated to cost over €4,000 and this rendered the vehicle an economical write off.  The Plaintiff advised his Engineer that his car travelled about a car length as a result of being struck from behind and his Engineer estimated that this meant that the Plaintiff’s vehicle went from 0 to 11.5 miles per hour during the impact and then stopped.  The Plaintiff’s Engineer agreed that the impact was not that severe to the Plaintiff’s vehicle however it had taken a hit sufficient to cause injury.  He said that he was not saying it was severe but agreed it was a minor impact but sufficient to cause injury.

The Defendant gave evidence to advise that she was 37 weeks pregnant at the date of the accident.  She stated that she did not make contact with the steering wheel as a result of the impact nor did the air bags in her car inflate and she described the impact as mild.  The Defendant’s Engineer described the impact to the Plaintiff’s vehicle as light with no distortion of the rear bumper reinforcement and he described the damage to the Defendant’s vehicle as being “moderate impact damage”.  The Defendant’s Engineer are of the opinion that the impact had the effect of increasing the speed of the Mercedes by 4.3 km/h.  In cross examination he accepted that the impact was not minimal and he conceded that it was little more than that.

The Plaintiff was 64 years of age when the accident occurred, he suffered injuries to his left shoulder, chest and lower back.  While he did not immediately appreciate that he was injured and the damage to his car was very slight and it could still be driven.  He continued to work that evening dropping his fare to her destination.  He said it was on the following Thursday that he found himself unable to get out of bed as a result of pain and limitation of movement.  His GP referred him for an x-ray which showed degenerative changes in his lumbar spine, his MRI scan subsequently showed multi-level disc protrusion, facet joint hypertrophy and spinal stenosis.  He was treated with oral analgesics, muscle relaxants and physiotherapy.  Of importance was his GP’s evidence wherein she told the Court that the Plaintiff was a patient of her practice since 2005 and had no previous complaints of back pain except for a brief mention of backache during a consultation in April 2010 being seven years prior to the accident.  Her opinion was that his lower back pain was attributable to an exacerbation of the spinal stenosis.  It was noted that the Plaintiff had been referred by his Solicitor to Professor Gary O’Toole Consultant Orthopaedic Surgoen.  Mr O’Toole noted that the Plaintiff’s imaging had degenerative disc disease throughout the lumbar spine.  He agreed that somebody with a perfectly good spine might not have problems following a low velocity injury, but the outcome was unsurprising in a spine that had inherent pathology.

The Defendants called Professor Garry Fenelon who examined the Plaintiff and noted that he had some restriction of rotation of his neck but this was pain free, he described the Plaintiff’s lower back as extremely stiff.  His summary was that the Plaintiff had suffered a low velocity accident and he was surprised that he had not made a full recovery and he did not think treatment would be of benefit as the Plaintiff had severe arthritis.  He believed that the Plaintiff’s vehicle had been damaged to the extent of €900 rather than €500.  He admitted that he had not been told of the extent of the damage to the Defendant’s vehicle however he nonetheless maintained an opinion that the Plaintiff’s complaints now were unrelated to the accident but were a consequent of the degeneration already present in his spine.

The Trial Judge in the High Court accepted that the Plaintiff was a credible witness who did not exaggerate his injury and she expressed a preference for the evidence of Professor O’Toole which she described as impressive.  She considered that it was relevant that the Plaintiff had no back difficulty for seven years prior to the accident but now had marked problems.  She was satisfied on the balance of probabilities that the impact of the Defendant’s vehicle could have exceeded the threshold of velocity which could result in the Plaintiff suffering the injuries he described.  She accepted the injury on behalf of the Plaintiff, but an impact can occur and cause minor damage which can cause injury to the occupant of the vehicle.  She assessed the Plaintiff’s damages having regard to the Book of Quantum as €50,000 for pain and suffering to date, €15,000 for pain and suffering into the future together with Special Damages of €4,000 totalling the sum of €69,193.82.

On Appeal, the Court of Appeal upheld the €69,000 award and the Court held that the Trial Judge was perfectly entitled to take the view that she did on the evidence and that she correctly applied the Book of Quantum and Notice of Appeal was described as uninformative but essentially claimed that the Trial Judge erred in holding that the evidence established that injuries could have been caused by the accident.  Delivering judgment in the case Mr Justice Seamus Noonan heard that the Court was not bound to slavishly follow the opinion of experts and it was also entitled to accept expert evidence which it found to be persuasive subject to giving reasons why any particular expert’s evidence was preferred over another.  Mr Justice Noonan heard that the Plaintiff’s Engineer was eminently qualified and gave evidence in a coherent and logical fashion.  His evidence was not contradicted to any significant degree by the Defendant’s expert and the evidence of the Plaintiff’s medical expert was consistent with an asymptomatic condition being symptomatic as a result of trauma and the Trial Judge was entitled to prefer this.

The Court acknowledged the potential for fraud in trivial and minor accidents but that a Plaintiff could also suffer real damage in a slight impact.  The Defendants made legitimate attempts to discredit the Plaintiff’s evidence on cross examination but these attempts largely failed.  The Court noted that the Defence was based on the lack of damage to the Plaintiff’s car and said that “it cannot be doubted here, particularly having regard to the extent of the damage to the Defendant’s vehicle that a reasonably appreciable impact did occur”.  The Court felt that the Defendant’s medical experts’ view was coloured to a significant extent by the minimal damage to the Plaintiff’s car and it was unfortunate that the expert was not told about the extent of the damage to the Defendant’s car.

Based on the above the Court dismissed the Appeal stating it’s provisional view was that the costs should be awarded to the Plaintiff.

DATA BREACH OF HSE DATABASE

The recent ransomware attack on the HSE I.T. systems causing Hospitals and G.P practices to shut down has been the highlight of media reports in the last few weeks.  While the focus has been the immediate disruption caused, the potential exposure of sensitive citizens data is only slowly starting to emerge.

 

Data breaches by the HSE are not uncommon.  In February of this year, a new Covid-19 vaccination rollout I.T. system was established and backed by Salesforce CRM and IBM who won a State Tender to provide the service.  However due to 52 data access points within the system, a significant data breach occurred mainly due to employee error.

 

Furthermore, it was reported recently that warnings were made about “weaknesses” in the Health Service Executive’s computer systems three years ago.  Issues were identified with “security controls” and “disaster recovery protocols” by internal audits which were flagged in HSE annual reports for two years in a row.

 

WHAT DOES THIS MEAN FOR THE IRISH PUBLIC?

 

Due to the ransomware attacks and previous data breaches, an enormous amount of sensitive data to include PPS Numbers, date of births and other personal records can be sold online on the Dark Web to the highest bidder who with the use of social engineering can use this information for fraudulent purposes at a significant cost to the victims whose data has been used in this way.   For such victims, the main recourse is to pursue a claim under the GDPR Regulations which are governed in Ireland under the Data Protection Act 2018.

 

There are two avenues of complaint:

 

  1. A complaint to the Data Protection Commissioner (DPC)

 

As the DPC can reach findings about whether there has been a breach, the DPC cannot award compensation but if liability is in question, then the DPC may be able to clarify the matter before proceedings are issued.

 

  1. A Data Protection Action in either the Circuit Court or High Court under S.117 Data Protection Act 2018.

 

Under GDPR a data controller or a data processor such as the HSE must contact you and inform you that your personal data has been breached.  However due to the recent media coverage it may be disproportionate for the HSE to establish contact.  If you believe your data has been breached, you should contact the HSE directly to clarify whether it has.

 

Prior to the GDPR, the Irish High Court held that only material damage was compensable.  However, Article 82 of the GDPR establishes a right to compensation for a data subject who has suffered either material or non- material damages as a result of the breach.  Such loss has been difficult to quantify but recent persuasive UK Authorities have ruled that compensation can be awarded for loss of control over personal data, even where there was no pecuniary damage or distress.   However, in Ireland, it will be necessary to show such loss from a psychological point of view.  The Irish Courts have repeatedly ruled that upset or distress short of psychiatric injury is not recoverable in tort. Therefore, you would have to make a claim through the Personal Injury Assessment Board for a claim for such injury and to do so within 2 years despite the fact that the GDPR statute allows for 6 years.  It may be the case that any such data used for fraudulent purposes will allow one 6 years to take a case to the Circuit or High Court for material damage.

 

If you have been affected, then do not hesitate to contact us on 021 2390620 or email: anthony.shields@mdmsolicitors.ie and a member of our specialised privacy and data protection experts will be able to advise you.

 

DOLPHIN TRUST IN LIQUIDATION

We have a number of clients who are affected by this and who have instituted proceedings in this matter.  

This is a German Property Fund or a German Fund Group of products.

These are unregulated investments in Ireland and an Order of the High Court made by Mr Justice Brian O’ Moore on Wednesday the 10th March confirms that this investment group is now deemed insolvent and will be wound up.  If you have through a Broker or through any investment vehicle invested funds in this group, please call us on 021 239 0620 and we can assist you in establishing whether you have a claim.  This is a free and confidential service, and we look forward to providing you with any legal assistance required.

Summary of Facts:

On Wednesday morning Mr Justice Brian O’ Moore ordered that a petition to wind up M.U.T103 Limited must be granted.  He deemed the company insolvent and unable to pay its debts as they fell due pursuant to Section 569 (1) (d) of the Companies Act, 2014.

 

Background of Facts:

Charles Smethurst Incorporated the German Property Group GMBH a number of years ago.  It operated as an investment vehicle, whereby it raised funds from private investors to develop and renovate war listed buildings in Germany.  The promise to investors was high, interest payments by way of return.  It is thought that more than 1 billion was invested in the company by investors located in Ireland, the United Kingdom, Russia, France, Singapore and South Korea.   It is believed that Irish investors invested in excess of €170,000,000 in the fund and that extensive Irish investors have been left unpaid.

Many Financial Brokers in Ireland have advised clients that this is a good investment offering a loan coupon in return for a cumulative payment or indeed a yearly payment.  The investment worked on a 3 or 5 year term depending on the initial sum invested or indeed the term of investment.

The Administrator and Security Trustee since 2011 has been Wealth Options Trustees Limited.

It is thought the financial difficulties of the company are long standing and certainly came to light in 2019.  Despite assurances given in this jurisdiction and indeed other countries no payment was forthcoming.

Ms Kathleen Dineen bought a petition before the High Court on the 10th March 2021 seeking an Order to wind up the company on the basis that the company could not pay her loan back following a demand for same.  There was no defence put forward on behalf of the company and Mr Justice O’Moore indicated that the company must be now placed in liquidation.  He noted that there were “profoundly worrying” allegations made about the status of the German Fund since July 2019.  Despite re-assurances given by Brokers and indeed Wealth Options to investors in the intervening period, it seems these assurances were given without foundation or indeed any substance.  Many Irish investors find themselves now in a line of unsecured Creditors in terms of investment made and ultimately are unlikely to see any substantive return of their monies.

Call Stephen Quinn, Carrie McDermott or Anthony Shields on 021 239 0620 for a confidential consultation and advice in respect of this if you have been affected by it.