LEGAL COLUMN: New and approved guidelines for personal injury awards

John Lynch writing in this week's Nationalist

Reporter

Reporter:

Reporter

Email:

news@nationalist.ie

Tipperary Tipperary Tipperary

John Lynch of Lynch Solicitors

On March 6 2021, judges voted in favour of introducing new guidelines for Personal Injuries awards (83 to 63 votes).

The new guidelines will replace the Book of Quantum, which to date set out the general guidelines for the amounts that the courts can award in personal injury claims.

The new guidelines introduction means that general damages awards, i.e. awards made by the court for pain and suffering, will be reduced for some personal injuries (mainly minor injuries).

WHY WERE THE NEW GUIDELINES INTRODUCED?
In Ireland, it was said that whiplash awards are 1.2 to 1.3 times higher than in Northern Ireland and 1.9 to 2.3 times higher than in England and Wales. Therefore, the guidelines aim to vary compensation for minor injuries to a level between awards in Northern Ireland and England and Wales. The guidelines also aim to ensure that awards for lesser injuries are proportionate to the most severe injuries.

WHAT IS THE AIM OF THE NEW GUIDELINES?
Compensating a claimant for pain and suffering is difficult. It involves the judge having to equate the claimant’s pain and suffering to a monetary value, which, according to the judge, seems reasonable. This, in turn, may lead to judges awarding widely varying compensations for relatively similar injuries. This then can result in unnecessary appeals to the courts and offends the principle of equality. Therefore, the new guidelines stated aim is to achieve greater consistency in awards, more settlements and less litigation in the courts.
When will the new Guidelines be applied to cases?
It has been reported that the new guidelines will apply only to cases where the Injuries Board has not yet assessed compensation.
This means that where PIAB has already provided an amount to be compensated, and the claimant has declined it and where the case is already in the court system, the Book of Quantum will continue to apply.
The Government expects the guidelines to take effect in April 2021.
What if the Claimant suffers multiple injuries?
What if a claimant suffers more than one injury, therefore, falling into several brackets within the guidelines? In that case, the judge will have to identify the injury and the category of damages within the guidelines that best reflects the claimant’s most significant injury.
Once the judge values the most significant injury, he/she will then uplift that value for all of the additional pain and suffering arising from less severe injuries. The judge will have to ensure that the claimant is fairly compensated for the minor injuries also.
Therefore, the judge’s task will be to ensure that the overall award for compensation for multiple injuries is proportionate and fair when considered in light of the severity of other injuries that attract an equivalent award of damages under the guidelines.
What if the Claimant has pre-existing conditions?
In that case, the judge should only consider the extent to which the condition had been made worse. The judge should also consider how long the claimant has suffered from the additional pain caused by the injury in question.
What if a court is faced with an injury not explicitly outlined in the Guidelines?
In that case, the judge should try and find an equally severe injury in the guidelines and value the injury suffered by the claimant according to that equally severe injury. Most importantly, the judge must ensure that the award is fair and proportionate within the scheme of compensation provided in the guidelines.
All awards made for injuries not explicitly covered by these guidelines will be subject to review within three years. Below are two comparisons of awards in the new Personal Injuries guidelines with awards under the Book of Quantum:
TYPE OF INJURY
BOOK OF QUANTUM
GUIDELINES
Minor back or neck whiplash with full recovery with no surgery
Up to €18,400 (back) Up to €27,800 (neck)
€500–€3,000
Minor leg injuries
€27,700–€59,100
€12,000–€20,000

AFTERTHOUGHT
The Law Society of Ireland has said that it welcomes any measures that improve the personal injury awards consistency. However, it also stressed the need to maintain appropriate compensation for claimants.

The Society expressed concern that reducing a claimant’s compensation may benefit the insurance industry and harm the claimant.

Law Society of Ireland Director General Ken Murphy explained that there is no evidence that reducing the level of compensation awarded to personal injury victims will result in premiums going down. He commented: “We must avoid a situation where injury victims end up in a poorer position while insurance companies keep getting richer.”