Personal injury cases that have not yet been assessed by the State’s awards body will be subject to new guidelines on damages under soon-to-be-introduced laws.
Minister for Justice Helen McEntee will bring proposals to Cabinet on Tuesday to give legal effect to the guidelines after judges gave their backing to the plans, which are designed to ensure that awards are proportionate to the injuries sustained.
The majority of Judicial Council members, 146 of 168, participated in a virtual meeting on Saturday to discuss the guidelines, which were prepared by the council's Personal Injuries Guidelines Committee (PIGC). A total of 83 voted in favour of adopting the guidelines, with 63 against.
The guidelines will apply to all new cases that have not yet been assessed by the Personal Injuries Assessment Board (PIAB). Litigants who have previously refused offers from PIAB and opted to go to court will have their claims processed in line with the Book of Quantum, a list of types of injury that gives an indication of the level of compensation likely to be awarded in respect of that particular injury.
Ms McEntee will tell Ministers she plans to give legal effect to the new system "as quickly as possible" through legislation which is already making its way through the Oireachtas. The Government hopes the system will be in place "within weeks", sources said.
Ms McEntee will ask that the Government approve amendments to the Judicial Council Act 2019 and the Personal Injuries Assessment Board Act of 2003.
The amendments will be included in the Family Leave Bill 2021, a Bill under the auspices of the Department of Children, as it provides an effective “vehicle” to quickly enact the guidelines. This is because this legislation is already passing through the Oireachtas.
The amendments will cover the transition from the existing system, which is based on the Book of Quantum, to the new system based on the new personal injury guidelines.
Ms McEntee is expected to tell Ministers that the guidelines, once legally enforced, will cut litigation and potentially reduce awards. These are seen as a major driver of insurance costs and are considered to be high in Ireland relative to neighbouring jurisdictions.
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.
In memos circulated over the past few weeks, some judges, including the High Court's Mr Justice Anthony Barr and Mr Justice Patrick McCarthy of the Court of Appeal, raised a number of 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.
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.
They 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.