Justice Minister McEntee has confirmed that the Guidelines will apply from 24th April 2021 and will apply to all applications already made to PIAB except where an assessment has been made. The Judicial Council Guidelines on Personal Injury Awards were agreed on the 6th March 2021 following a lengthy process of political debate. The guidelines were adopted under S.7 of the Judicial Council Act 2019.
This is a welcome clarification as the Judicial Council had proposed that the guidelines be implemented no later than 1st of August 2021. It is hoped that by bringing forward the commencement date that this will pave the way forward for reduced insurance premiums.
The guidelines will operate to reduce the value of Whip Lash and Soft Tissue Injury Claims by 50% of what was previously recommended in the Book of Quantum. The Guidelines have also introduced a new category of Psychiatric Damage. Currently this category would not ordinarily be assessed by the Injuries Board and instead an ‘Authorisation’ would be granted permitting a claimant to issue proceedings. It should be noted that such recovery is only in relation to a recognisable psychiatric injury and a supportive report from a recognisable expert will be necessary for the claimant. The implementation of the guidelines will change this and split the Psychiatric Damage category in to two subcategories namely; Psychiatric Damage Generally and Post Traumatic Stress Disorder (PTSD). The range of awards for this category span from €500 to €15,000 in respect of minor damage, to the broad range of €80,000 to €170,000 in respect of Severe Damage. Recommendations for PTSD range from €500 to €10,000 for Minor PTSD and €60,000 to €120,000 in respect of severe PTSD. The broadness of this category is due to the subjective nature of such claims.
Furthermore, a new category of ‘Chronic Pain’ and Scaring / Disfigurement under the headings of Facial injury and Non-Facial Scarring and Burns will be introduced. Such assessments are currently the most subjective and least settled areas in personal injuries litigation. Thus, the guidelines will provide some assistance at prelitigation stage to assess the likely level of award. As with Psychiatric Injuries it is clear that the Court will retain significant discretion in relation to the most serious scarring injuries with the most severe scarring in relatively young claimants ranging from €80,000 to €200,000.00. It is at the lower end of the spectrum where the recommended award is more prescriptive between €500 and €7,000 for minor scarring and between €7,000 to €30,000 in respect of Moderate Scarring.
It is clear that the guidelines will shape the personal injury landscape and it remains to be seen if the savings derived from a reduction in awards will be passed on to policyholders, especially the SME. It would appear that a two-tier system will apply until legacy cases are finalised but this will now be a much shorter period than was previously envisaged. A further point is the likely impact of the change of jurisdiction from the High Court to the Circuit Court and ultimately from the Circuit Court to the District Court, which may result in an overburdening of the Circuit and District Courts and a further lengthening of time before claims can be brought to hearing.