Judges have voted to adopt new guidelines aimed at reducing general damages awards for some personal injuries, particularly minor injuries, and ensuring awards are proportionate to the injuries sustained.
The majority of Judicial Council members, 146 of 168, participated in the virtual meeting on Saturday and 83 voted in favour, and 63 voted against, the guidelines.
Because a majority of those present voted in favour, the guidelines, prepared by the council's Personal Injuries Guidelines Committee (PIGC), were adopted.
The Minister for Justice, Helen McEntee, will bring proposals to Cabinet on Tuesday on how to implement the guidelines, to take effect once the Minister commences section 99 of the 2019 Judicial Council Act.
They will replace the Book of Quantum (BOQ), which set general guidelines for the amounts to be awarded or assessed in personal injury claims.
While the courts will retain independence and discretion when awarding general damages, it will be mandatory for judges to assess damages having regard to the guidelines and they will have to specify, in judgments, their reasons for any departure from them.
Mc McEntee has said the changes will take place as soon as possible and she intends the guidelines will apply to all cases not yet assessed by the Personal Injuries Assessment Board (PIAB). "This approach will ensure that the law is robust as we seek to reduce the cost of insurance," she said.
The guidelines will not apply to litigants who have already rejected a PIAB offer as inadequate and gone to the courts.
A meeting of the council, first scheduled for February 5th , proceeded on Saturday having been twice adjourned after some judges said they had had insufficient time to consider the guidelines.
A number of memos circulated by some judges over the past few weeks, including the High Court’s Mr Justice Anthony Barr and Mr Justice Patrick McCarthy of the Court of Appeal, raised various concerns. Those included whether the guidelines would lead to awards which insufficiently compensate some plaintiffs, whether the committee engaged in adequate consultation with interested and affected parties and the implications of what some described as “judge-made” law for judicial independence.
Those issues were responded to by the board of the council, comprising the presidents of all five court jurisdictions chaired by the Chief Justice, which urged support for the guidelines.
Sources say up to 10 judges spoke at Saturday’s meeting, with about half in favour and half against.
The Supreme Court’s Mr Justice Donal O’Donnell and the High Court’s Mr Justice Michael McGrath were among those who spoke in favour while those who spoke against included Mr Justice Kevin Cross, who manages the High Court’s personal injuries list and is due to retire later this year.
It is understood some District Court judges expressed concern whether that court has sufficient resources to deal with an expected increase in cases coming before that court as a result of the reduced awards.
The guidelines were compiled after the PIGC examined awards here and in certain other countries. They provide for awards for certain injuries, particularly minor injuries, to be reduced to a level between awards in Northern Ireland and awards in England and Wales.
Data obtained by the committee suggested Irish whiplash awards are 1.2 to 1.3 times higher than in Northern Ireland, and 1.9 to 2.3 times higher than their English and Welsh equivalents.
The guidelines propose a modest increase in awards for the catastrophically injured with the maximum general damages for such injures to be increased from €500,000 to €550,000.
The aim is to ensure awards for lesser injuries are proportionate to that maximum
The guidelines list specific injuries, ranging from minor to major, each of which has assigned to it a range or bracket within which an award of damages should ordinarily fall.
They provide for slightly higher awards for certain more severe injuries. In the case of severe Achilles Tendon injury, they provide for awards between €40,000-€55,000 while the BOQ provide for between €41,200-€51,600.
They also propose brackets of damages to ordinarily apply for certain injuries for which the BOQ has not provided a figure.
They provide for between €280,000-€400,000 for the loss of both legs and between €120,000-€160,000 for an above knee amputation of one leg. The BOQ does not fix a specific range for those injuries, saying each case has to be assessed on its individual merits.
In its report presenting the guidelines, the PIGC said the categories of injuries in the guidelines are “much more detailed” than in the BOQ and this allowed the committee predict, “with much greater accuracy”, the bracket of damages within which the award for each particular injury should ordinarily lie. In cases where the facts are exceptional, a judge may depart from the relevant bracket provided the facts and reasons for doing so are clearly set out.
The expectation is the guidelines will lead to more consistent and significantly reduced awards, especially for minor and soft tissue injuries; to more, and earlier, settlements of cases and will discourage bringing certain cases before the High Court where higher legal costs apply.
In the case of a simple non displaced nose fracture with a full recovery, the guidelines provide for an award of between €500-€3,000 when the BOQ provides for between €18,000-€21,000.
In cases of minor brain damage or head injury, the guidelines provide for sums €500-€3,000 where there is substantial recovery within six months and €12-€25,000 where there is substantial recovery in two to five years. Affecting factors include the severity of the initial injury and pain.
In contrast, the BOQ provides for up to €21,800 for a concussion type injury where recovery results in most cases and for €34,700 to €60,200 for a skull fracture with no loss of consciousness/minor head injuries which result in little or any disability.
For an injury involving minor but permanent impaired vision in one eye, the guidelines provide for an award between €15,000-€45,000 while the BOQ provides for €22,500 to €45,400.
For tooth loss, the guidelines provide for €3,500-€8,500 for one front tooth and €1,500-€3,000 for one back tooth. The BOQ provides for €10,300 to €12,700 for loss of one tooth and €7,500 to €10,300 for a broken tooth.
The guidelines provide for damages of between €17,500 to €27,500 for the total loss of a ring finer and between €10,000-€17,500 for its partial loss. The BOQ provides for up to €57,200 for total loss and up to €43,300 for partial loss.
A big toe amputation would attract damages of between €28,000-€45,000 under the guidelines while the BOQ provides for up to €70,600.
The guidelines provide for between €500-€12,000 for a minor Achilles Tendon ankle injury, involving €500-€3,000 if substantial recovery takes place within six months; €3,000-6,000 within six to 12 months and €6,000-€12,000 between one and two years.
Damages of between €18-25,000 apply to a moderate Achilles Tendon injury; €25,000-€40,000 for serious injury and between €40,000-€55,000 for a severe one, involving severance of the tendon and restricted ankle movement, requiring cessation of active sport. The BOQ figures for a minor Achilles Tendon injury are up to €12,000; between €14,600-25,700 for a moderate injury; €35,900-42,200 for moderately severe and from €41,2000-€51,600 for severe and permanent conditions.