The much-anticipated Personal Injury Guidelines came into effect on the 24th April 2021 with the Judicial Council Act 2019 (Commencement) Order 2021 and are expected to have a significant impact on the personal injury litigation landscape.
The stated aim of the new Guidelines is to achieve greater consistency in judicial awards. All awards should be fair and reasonable to the plaintiff and defendant. Furthermore, awards should be proportionate within the context of the general range of awards for personal injury.
Old versus the New
The Guidelines are to apply to all personal injury actions commenced on or after the 24th April 2021 where an assessment has not been made by the Injuries Board. The Book of Quantum will continue to apply to cases in which the Injuries Board have made an assessment or where litigation has commenced.
As such, a two-tier system will prevail for a time with the Book of Quantum and the Guidelines in operation.
The Guidelines contain a clear explanation of the methodology that is to be applied to the assessment of general damages in personal injury cases. The court is to retain its independence and discretion when it comes to making an award of general damages but it is mandatory for the court to have regard to the new Guidelines and where the court chooses to depart from the Guidelines it should explain why it did so.
As expected, the valuations provided within the Guidelines for minor and moderate injury are dramatically reduced from the amounts allowed for under the old Book of Quantum. However, the damages available for more significant injury has increased with the cap for general damages now set at €550,000. There is considerably more depth to the categories of injuries provided within the Guidelines when compared to the Book of Quantum. Additionally, new categories of injury have been provided for within the Guidelines such as psychiatric injury and pain disorders. To date, claims involving strictly psychiatric injury were not assessed by the Injuries Board but with guidance now available to the Injuries Board as to the appropriate level of damages to award in such cases, it is expected that the Injuries Board will now assess such cases which should further reduce the number of claims proceeding to litigation.
In a new departure, the Guidelines provide that at the conclusion of every case the trial judge should request each party to make brief submissions regarding the appropriate bracket of damages that should be awarded.
Specific guidance is also provided as to the manner in which damages are to be assessed in claims involving a pre-existing injury or medical condition and claims involving multiple injuries. In the case of the former, the trial judge when assessing damages is only to have regard to the extent and duration to which the injury or condition was made worse. In relation to multiple injuries, the Guidelines direct that the appropriate approach is for the trial judge to identify, where possible, the bracket of damages which best reflects the plaintiff’s dominant injury, select a value for that injury and then uplift that value so that the plaintiff is fairly and justly compensated.
The Guidelines, which are a most welcome development for business, represent a central element of the Government’s Action Plan for Insurance Reform and are intended to bring about a significant reduction in the level of personal injury awards which are a major driver of insurance costs. The Guidelines are anticipated to establish a standardisation of judgments in personal injury cases which will lead to greater certainty for both plaintiffs and defendants. This certainty is expected to encourage earlier resolution to claims resulting in a significant reduction in the level of awards and legal costs. The reduced level of damages now available for minor and moderate soft tissue injury claims is likely to cause a significant increase in litigation before the District and Circuit Courts which may well lead to those courts being over-burdened resulting in delays in moving litigation to a conclusion.
Key lawyers: Michael Murphy; Anna Owens; Wayne Finn; Audrey Browne. ‘Shown a consistency in their professionalism, approach, knowledge of the law and ability to deal with large and complicated litigation matters’
Insurance | Legal 500 EMEA 2021