Navigating the global liability defence agenda

The Personal Injuries Guidelines 2021

The Personal Injuries Guidelines (the Guidelines) were commenced on 24 April 2021, replacing the Book of Quantum in Ireland for all claims issued post-April 2021. 

The Guidelines are applicable to personal injury and medical negligence claims.  The Guidelines were described as 'a key milestone in the insurance reform agenda' by The Minister of State and since their introduction there has been a dramatic reduction in personal injury general damages awards.

Operation

The fundamental difference between the Book of Quantum and the Guidelines is that the application of the Guidelines is mandatory, insofar as the trial judge must have reference to the Guidelines when making their decision on quantum.

At the conclusion of every case, the parties will be directed to the Guidelines to identify (by reference to the dominant injury) the relevant damages bracket in the Guidelines, and make submissions as to where within the bracket the injuries fall. Up until now, it was rare for parties to make submissions on quantum to the trial judge.

It is mandatory for the trial judge to make their assessment having regard to the Guidelines, and if departing from the Guidelines, to state the reason(s) for doing so.

Where there are multiple injuries, the trial judge should firstly identify the most significant injury and the bracket of damages relevant to that injury, and then uplift the value to ensure that the claimant is properly compensated for the additional pain and suffering caused by any other, lessor injuries.

Where a pre-existing condition has been aggravated by an injury, the trial judge should have regard only to the extent and duration to which the condition has been exacerbated.

Expansion

The Guidelines also provide judicial guidance on a number of new injuries, which were not previously addressed in the Book of Quantum. These include:

  • Psychiatric injuries
    • The Guidelines include a standalone section dealing with post-traumatic stress disorder (PTSD).
  • Chronic pain
    • The inclusion of guidance for chronic pain conditions, in particular Chronic Regional Pain Syndrome, is to be welcomed, given the highly subjective nature of many of these conditions.
  • Facial injuries and scarring
    • The Guidelines include sections related specifically to facial and non-facial scarring, as well as to burn injuries. 
  • Eye injuries and hearing loss
    • The Guidelines provide comprehensive guidance on the appropriate damages for total deafness, partial loss of hearing/tinnitus, as well as for total blindness and loss of sight in one eye with reduced vision in the remaining eye.
  • Foreshortened life expectancy
    • This category includes guidance in relation to claims resulting from undiagnosed illnesses. Factors influencing the level of damages include the claimant’s age, the reduction in life expectancy and the nature and duration of the treatment required.

Reductions

The PIAB Award Values Report (October 2021) found that in the first six months since the introduction of the Guidelines, there has been an average reduction in general damages awards of 40%, in comparison to the same period in 2020.  The PIAB has reported that since the introduction of the Guidelines, average awards have fallen from €23,877 to €14,233.

The Guidelines have significantly reduced awards for minor and moderate orthopaedic injuries. For example, a minor neck injury, which has substantially resolved within six months, is valued between €500 - €3,000. This compares with a value of up to €15,700 in the Book of Quantum.

This trend is not limited to orthopaedic injuries. For example, whereas the Book of Quantum values minor concussion injuries up to €21,800, the Guidelines value a minor head injury between €500 and €3,000 where there is a substantial recovery within 6 months.

Conclusion

  • The Guidelines have directly impacted on the level of damages awarded and have seen awards and settlements becoming more proportionate to the injury suffered.
  • While the Book of Quantum will continue to apply to 'old' claims (pre-April 2021), recent judicial decisions have highlighted that the Guidelines may still have a bearing on the assessment of damages in pre-April 2021 claims, with judges using the Guidelines as a useful benchmark for damages, despite there being no obligation to do so.
  • The Guidelines restate the established position that in the absence of physical injury, there must be a recognisable psychiatric injury – upset, distress, grief, disappointment and humiliation do not attract compensation.
  • Concerns have been expressed about the number of claims that will now fall within the monetary remit of the District Court, in the wake of the introduction of the Guidelines, and whether the District Court has the resources in place to manage this workload.
  • A number of Constitutional challenges have been raised against the Guidelines and are currently proceeding through the courts, claiming that the Guidelines breach the separation of powers between the legislature and judiciary. Insurers will be following these challenges with much interest.