After a lengthy process of political debate, the Judicial Council was formed under s.7 of the Judicial Council Act 2019 and met on the 6th of March 2021 to formally adopt ‘the Personal Injury Guidelines’. This is a measure which reviews the quantum of personal injuries suffered from an accident as outlined in the original Book of Quantum in 2004. The new guidelines are set to be implemented by no later than the 1st of August 2021.
The guidelines themselves “seek to promote a better understanding of the principles governing the assessment and award of damages for personal injuries with a view to achieving greater consistency in awards notwithstanding that cases will invariably have their own unique features”.
Interestingly it seems that a two-tiered system will be in place for pre-existing claims and those affected by the guidelines. The Minster for Justice Helen McEntee has stated that she intends that the new Personal Injuries Guidelines will apply to all cases that have not yet been assessed by the Personal Injuries Board.
The guidelines state that “the Court will retain its independence and discretion when it comes to making an award of general damages”. However, it will be mandatory for the Court when assessing damages in a personal injuries action to have regard to the Personal Injuries Guidelines and state the reasons for departing from those guidelines where the case may be.
In the case of Multiple Injuries, the guidelines set out that the appropriate approach for the Trial Judge is to identity the injury and bracket of damages within the guidelines that best resembles the most significant of the claimant’s injuries and then uplift that value commensurate with the claimant’s pain, discomfort and limitations arising from their lesser injury. For Pre-existing Conditions, the guidelines provide that the Court should have regard “only to the extent to which the condition has been made worse and the duration of any increased symptomology”. This will likely lead the Court to examine a doctor’s diagnosis and prognosis in such cases with increased scrutiny.
The Recommended Awards / Considerations:
The guidelines set out 12 categories of injuries with a number of considerations which would affect each level of award including: age, interference with quality of life and education; impact on work; impact on interpersonal relationships; whether medical assistance has been sought; the nature, extent and duration of treatment undertaken and/or medication prescribed; the likely success of treatment and the prognosis, to include any future vulnerability. The categories are listed below:
|1. Injuries resulting in foreshortened life expectancy||5. Injuries affecting the senses||9. Facial injuries|
|2. Injuries involving paralysis||6. Injuries to internal organs||10. Non-facial scarring and burns|
|3. Head Injuries||7. Orthopaedic Injuries||11. Damage to Hair|
|4. Psychiatric Damage||8. Chronic Pain||12. Dermatitis and other Skin Conditions|
The categories of injuries above are considered as per the Book of Quantum as Minor, Moderate, Severe & Serious and Most Severe. The Guidelines do not have overlapping considerations as was the case with the Book of Quantum and this will undoubtedly result in an increased debate in many cases as to the precise category in relation to which any given injury falls to be considered.
The ‘New’ Categories:
The most prominent of the ‘new’ categories is no. 4 in the table above titled ‘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.
Another new category is ‘Chronic Pain’ and Scaring / Disfigurement under the headings of Facial injury and Non-Facial Scarring and Burns. 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.
Soft Tissue Injuries and Common Injuries:
it is clear that the Guidelines most impact the soft tissue injury which are categorised as Minor. There are also significant reductions in respect of some of the more common injuries, including for broken bones in the arm, wrist, leg, and foot. Other injuries as set out in the Book of Quantum have been reduced up to 50% of what was previously assessed in the Book of Quantum and is more reflective of UK personal injury awards.
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. 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.