The Personal Injuries Guidelines 2021: Ireland

The publication, adoption and now statutory implementation of the Personal Injuries Guidelines (the Guidelines) is the culmination of long debated reform of personal injury claims in Ireland. The Guidelines, which are similar to the Judicial College Guidelines in England and Wales, were implemented as part of the Family Leave and Miscellaneous Provisions Act 2021 (the 2021 Act), and come into effect on 24 April. The Minister of State with responsibility for insurance, Sean Fleming, described the Guidelines as “a key milestone in the insurance reform agenda”.

Judicial Guidelines or Book of Quantum

By amended Section 99 of the Judicial Council Act 2019, which in turn amends Section 22 of the Civil Liability and Courts Act 2019, the 2021 Act provides that the Guidelines will apply to the assessment of damages in all personal injuries actions commenced on or after 24 April 2021.

The Book of Quantum will continue to apply to proceedings commenced prior to 24 April 2021 or where an assessment was made by the Personal Injuries Assessment Board (PIAB) prior to 24 April 2021 and was deemed not to be accepted. This means there will be a dual system in place for the foreseeable future where both the Book of Quantum and the Guidelines will be in use.

It is worth noting, however, that when dealing with a pre-24 April 2021 claim, to which the Book of Quantum applies, a court will not be prevented from having regard to other matters (as has always been the case), including the Judicial Guidelines.

Operation

The fundamental difference between the Book of Quantum and the Guidelines, is that the application of the Guidelines is mandatory.

At the conclusion of every case, the parties will be directed 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 are located. 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 they are obliged to state the reason(s), in any judgment, for departing from the Guidelines (if any).

Where there are multiple injuries, the trial judge should identify the injury and bracket of damages that best resembles the most significant of the claimant’s injuries. Once they have valued that injury, the trial judge should uplift the value to ensure that the claimant is properly compensated for the additional pain and suffering caused by the lesser 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 had been made worse.

Expansion

While much of the focus and commentary around the Guidelines concerns the reduction in the level of damages for minor/moderate soft tissue injuries, it is also important to note (and welcome) the far greater range of injury that we now have judicial guidance on. These include:

Psychiatric injuries

  • This includes a standalone section dealing with post-traumatic stress disorder (PTSD), which is confined to psychological trauma suffered as a response to experiencing or witnessing a terrifying event (nervous shock).
  • We can now expect PIAB to begin assessing psychiatric injuries in light of the Guidelines.

Chronic pain

  • With the exception of complex regional pain syndrome (CRPS), the Guidelines do not subdivide between different clinical conditions causing dysfunction of the central nervous system, such as myalgic encephalomyelitis (ME), fibromyalgia and conversion disorders.
  • The inclusion of guidance for chronic pain conditions, in particular CRPS, is to be welcomed given the highly subjective nature of many of these conditions but the absence of guidance on other related conditions is, arguably, a shortcoming in the Guidelines.

Facial injuries and scarring

  • While skeletal and soft tissue facial injuries were provided for in the Book of Quantum, the Guidelines include facial scarring and disfigurement.
  • The Guidelines also include non-facial scarring and burns. It is worth noting, however, that the bracket for a single noticeable scar on the legs, arms or hands is €1,000 to €40,000. This highlights the subjective nature of these injuries and the difficulty that arises when assessing damages.

Eye injuries

  • The Book of Quantum was limited to injuries affecting sight and total loss of sight in one eye. The Guidelines include a range of damages for total blindness (€270,000 to €400,000) and loss of sight in one eye with reduced vision in the remaining eye (€120,000 to €300,000).

Hearing loss

  • The Guidelines provide comprehensive guidance on the appropriate damages for total deafness, partial hearing loss/tinnitus.

Foreshortened life expectancy

  • The Guidelines provide direction in relation to claims resulting from undiagnosed illness, or other events causing a shortening of life expectancy. Damages for claims falling within this category can be up to €550,000 and factors influencing the level of damages include the claimant’s age, reduction in life expectancy, and the nature and duration of the treatment required.

Reductions

The Guidelines have reduced the awards for minor and moderate orthopaedic injuries. For example, a minor neck injury, which has substantially resolved within six months, is valued between €500 to €3,000. This compares with a value of up to €15,700 in the Book of Quantum. Similarly, a back injury where a substantial recovery has been achieved within a period of two to five years is valued between €12,000 and €20,000. Again, this represents a significant reduction on the Book of Quantum where the same type of injury is valued between €21,400 and €34,400.

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

Comment

The Guidelines will directly impact on the level of damages awarded and should see awards and settlements becoming more proportionate to the injury suffered. The implementation of the Guidelines should also lead to a greater number of claims being assessed by PIAB.

While much of the focus has been on the reduction on the value of minor/soft tissue injuries, under the Guidelines, the most devastating and catastrophic injuries could attract an award of general damages of up to €550,000. This is up from €500,000.

While the Book of Quantum will continue to apply to ‘old’ claims, the Guidelines may have a bearing on the assessment of damages in these claims, especially when the Guidelines have been in place for some time and have become the ‘norm’.

The Guidelines restate the established position that in the absence of physical injury, there must be a recognised psychiatric injury – upset, distress, grief, disappointment and humiliation do not attract compensation. Nonetheless, we can expect to see a greater emphasis in claims on the psychological effect of physical injuries in order to increase the overall ‘value’ of a claim.

Concerns have been expressed about the number of claims that will now fall within the remit of the District Court, in the wake of the introduction of the Guidelines, and whether it has the resources in place to manage this workload. It is worth noting that of the significant dissenting vote among the judiciary when adopting the Guidelines, a sizeable percentage were District Court Judges concerned about an increased workload.

The Department of Enterprise, Trade and Employment in Ireland also recently launched a public consultation seeking views on how to enhance and reform PIAB. The Government is considering a number of administrative and legislative changes to keep cases within PIAB. It is likely any changes will complement the greater scope of the Guidelines, with the aim of expanding the role of PIAB.

Read other items in Personal Injury Brief - June 2021