Damages for personal injuries in Republic ‘among highest in Europe’

Former High Court president Nicholas Kearns says system is ripe for abuse

Michael D’Arcy, Heather Humphreys and commission chairman  Nicholas Kearns present the findings of the final report of the Personal Injuries Commission. Photograph: Iain White/Fennell Photography

Michael D’Arcy, Heather Humphreys and commission chairman Nicholas Kearns present the findings of the final report of the Personal Injuries Commission. Photograph: Iain White/Fennell Photography

 

Compensation for personal injury claims in the Republic is among the “most generous in Europe” with a high risk of abuse because the risk of prosecution for fraudulent claims is “virtually zero”, former president of the High Court Nicholas Kearns has said.

Mr Justice Kearns was speaking on Tuesday after presenting the findings of the second and final report of the Personal Injuries Commission, which was established by the Government in January 2017.

The report showed awards for soft tissue injuries, or whiplash, in the Republic are more than four times greater than those in the UK, averaging €17,338 compared to €3,984.

“If you take as a starting point that we have one of the most generous compensation systems in Europe, that the risk of detection if you pursue a fraudulent or exaggerated claim is virtually zero and the risk of prosecution is virtually zero, you can see very quickly that the capacity for abuse of our compensation system is very real,” he said.

‘Responsibility’

Mr Justice Kearns said solicitors and barristers “have a responsibility – I won’t say vet – but to make careful enquiry as to the accuracy of what they’re being told”. He also pointed out that lawyers “can be lied to” and end up “mortified” in court when CCTV footage emerges to contradict sworn evidence.

If there were successful prosecutions for exaggerated and fraudulent claims it would make a very big difference

The report, he said, must be acted upon by Government “urgently” before the emergence of a sense of “helplessness that we’re dealing with a runaway train that nobody seems to be able to bring under control”.

Calling for the establishment of a Garda fraud investigation bureau along the lines of the Insurance Fraud Enforcement Department in the UK, Mr Justice Kearns said the problem in the system “feeds on itself” as the absence of prosecutions encourages reoffending.

‘Prosecutions’

“I think if there were a number of successful prosecutions for exaggerated and fraudulent claims it would make a very big difference,” he said. “The fact that people believe they can get a free run at the courts with zero risk is a powerful incentive.”

The key recommendation of the report is that the Judicial Council, when established, compiles guidelines for personal injury damages. Mr Justice Kearns rejected the suggestion that judges are unfit to tackle the disparity in awards.

“A number of recent cases in the Court of Appeal have resulted in the reduction of awards where the court of appeal has determined that trial judges have not correctly identified where on the spectrum the particular injury lay,” he said.