What are the Personal Injuries Guidelines, what are the main changes and what impact will they have on claimants?
In Ireland, injury or illness that has been caused by someone else’s negligence, may entitle the Injured Party to compensation. This type of relief is common in most jurisdictions with each country having their own specific method of calculating the level of compensation.
It has been contended that the level of awards made in Ireland is above the EU average. There are several factors for these current levels specific to Ireland including the prices of treatments, above average living costs etc.
In recent months, the Irish Judiciary have been asked to prepare new guidelines aa to the level of compensation appropriate for injuries. These guidelines are due to be implemented by Government shortly.
What are the Personal Injuries Guidelines?
The Personal Injury Guidelines were drafted by the Judicial Council’s Personal Injury Guidelines Committee.
The Personal Injuries Guidelines were brought before the 168-member Judicial Council and they were adopted under section 7 of the Act on 06/03/2021.
It is worth nothing that of the 168 members of the Judicial Council, 146 voted and of those 89 voted in favour and 63 against the adoption of the new Personal Injuries Guidelines.
Some judges have expressed their concerns about the Personal Injuries Guidelines including JJ Barton, Barr and McCarthy.
When will the Personal Injuries Guidelines come into effect?
Minister for Justice, Helen McEntee has brought proposals for the adoption of the Guidelines before Cabinet to give legal effect “as quickly as possible”.
On 09/03/2021 the Cabinet approved the Personal Injuries Guidelines, and they will come into effect when Section 99 of the Judicial Council Act 2019 is commenced by the Minister for Justice.
At the time of writing of this article this date has yet to be announced.
Why is this happening?
It has been argued that the Personal Injuries Guidelines are necessary to reduce the costs of insurance and to reduce the level of compensation for personal injuries.
This is to bring Ireland in line with other countries and strike a fair balance between injuries parties and those required to defend claims.
The insurance company narrative that fraudulent claims resulted in rising insurance costs have already been disproven, given that the level of reported fraudulent claims is so minuscule.
However there has been much debate as to the level of pressure the insurance industry and the media have made to bring about the Personal Injuries Guidelines.
Discussions surrounding these new guidelines has also brought into focus questions on the independence of the judiciary and commentary on the undermining of such balance of powers as required in a democracy.
Moreover, questions have been asked as to whether or the Guidelines will make any real reduction to the cost of insurance, given that levels of compensation have already been on a downward trend in recent years, while the costs of insurance, and profits of insurance companies continue to rise.
Some Insurance companies have already criticised the Personal Injuries Guidelines saying they do not go far enough and as such will likely not reduce the costs of insurance.
We must await the enactment of the Guidelines to determine the true effects of their introduction.
What will this change?
Once enacted, Section 22 of the Civil Liability and Courts Act 2004 will be amended so that the Court shall, in assessing damages in personal injuries actions have regard to the new Personal Injuries Guidelines and in the event of departing from those Guidelines, must state the reasons for doing so in giving judgments.
The new Guidelines will replace the existing The Book of Quantum which is used by the Injuries Board in the assessment off awards. This guide was last updated in 2016 used data from closed personal injury actions to provide a gauge of likely levels of compensation for various personal injury matters and outlines different factors which should be taken into account when valuing the level of injuries in respect to making a valuation.
How will this effect cases that have already commenced?
It is still unclear what the new Guidelines will govern once enacted. It has been suggested that they will affect cases not yet assessed by the Personal Injuries Assessment Board.
It is not clear if cases already submitted to the Personal Injuries Board but not yet assessed will be subjected to the new Guidelines once enacted.
In matters where the Personal Injuries Assessment Board have issued an Authorisation and proceedings have commenced, it is likely that the new Guidelines, once enacted, will not govern these matters.
It is to clarify whether or not the new Guidelines will only impact on general damages i.e. compensation for pain and suffering.
It appears the position in respect of claims for special damages i.e. out of pocket expenses will not be impacted by the guidelines
There is suggestion that the judiciary who voted in favour of the Guidelines may be mindful of the Guidelines in their judgments.
How will this effect new cases?
Cases commencing after the enactment of the new Guidelines will be governed by the new Guidelines.
It could be argued that their introduction will mean that more cases could fall into the lower jurisdiction of the District and Circuit Courts which may result in cases waiting longer to be heard thereby increasing the costs of litigation and indeed the claims themselves.
The pressure for the introduction of guidelines to reduce the level of compensation is due to increased insurance premiums and the lobbying of interested parties.
It remains to be seen if insurance companies will pass on the savings from lower compensation costs to their policyholders.
More importantly, it is unclear how Personal Injuries Plaintiffs will be impacted in the future following the introduction of lower awards and if these new levels of awards will adequately compensate those wronged by the negligence of others.
For the moment, much uncertainty remains, initially as to the commencement date of these new proposals.
It is important for injured persons act promptly in relation to any injuries they have and ensure they take appropriate advice to protect their rights.
Article dated 30.03.2021
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