Changes Ahead as Personal Injuries Guidelines Approved

On Saturday 6th of March 2021, the Judicial Council of 166 Judges met and approved new guidelines on the level of damages awarded in personal injury actions.  The Judicial Council had previously deferred deciding on the proposals to allow them time to further consider the proposed new guidelines.  The new Personal Injuries Guidelines have now been published and can be found here.

What are the Personal Injury Guidelines?

The Personal Injuries Guidelines Committee, chaired by High Court President Ms Justice Mary Irvine, submitted its proposals to the Board of the Judicial Council in late 2020. The Committee examined the level of damages for personal injury awards in England, Wales and Northern Ireland as part of their assessment.

The Committee prepared the Personal Injury Guidelines (PIG) which will replace the Book of Quantum and will be used by the Judiciary in calculating awards of damages.

The changes are heralded by the Government as an important step in bringing down the cost of and increasing the availability of insurance.

What will change?

Following the Judicial approval of the PIG, it now falls to the government to adopt the guidelines by commencing Sections 98 and 99 of the Judicial Council Act 2019.

These will provide that:

a) the Personal Injuries Assessment Board (PIAB) will no longer be responsible for preparing a Book of Quantum,

and

b) the court shall, in assessing damages in a personal injuries action, have regard to the Personal Injuries Guidelines and, where it departs from those Guidelines, state the reasons for such departure in giving its decision.

After commencement, relevant stakeholders will no longer refer to the Book of Quantum in valuing proceedings and will consult the PIG to assess likely damages.

The PIG states that “The obligation on the part of the trial judge to have regard to the Guidelines is mandatory as is his or her obligation, should he or she consider that the justice of the case warrants an award above the level of damages proposed for that or a similar injury in the Guidelines, to state his or her reasons for so departing.”

The Court will therefore have to state specific reasons if it is to depart from the PIG, which they are not required to do in respect of the Book of Quantum at present. It is unclear, under what circumstances the court will depart from the Guidelines and no doubt any such departures will be considered by relevant appellate courts in the future.

It is expected that the volume of Personal Injuries proceedings issued in the District and Circuit Court will significantly increase due to the reduction in damages and that the number of proceedings issued in the High Court will likely fall.

How will this affect damages?

The guidelines reduce the level of damages awarded for most injuries.   Damages for minor injuries in particular have been lowered significantly compared to the Book of Quantum.

Minor brain or head injuries previously attracted damages at up to €21,800 whereas the new PIG provide for damages of between €500 – €3,000 where there is substantial recovery within six months or €12,000 – €15,000 where there is recovery within two to five years.

Minor soft tissue shoulder injuries attract damages of between €500 and €12,000 where the Book of Quantum allowed for up to €33,500 for a similar injury.

Sums of €500 and €12,000 are allowed for whiplash injuries which would previously have been valued at between €15,700 and €19,400.

A simple fracture of the femur has been reduced from between €27,700 – €59,100 to between €12,000 to €20,000.

New headings have been introduced such as injuries leading to a reduction in life expectancy relating to undiagnosed cancers or terminal illnesses contracted through workplace negligence are to be decided on a case by case basis and up to a maximum of €550,000.

The new “cap” on general damages is increased by €50,000 to €550,000 for the most catastrophically severe injuries.

What are the timelines?

On 5th March 2021 the Minister for Justice Helen McEntee confirmed that once approved, the PIG will apply to all claims which have not yet been assessed by PIAB.

The Minister stated that proposals will be brought to Cabinet on Tuesday 9 March 2021 on how to implement the new Personal Injuries Guidelines.

She also confirmed that she “will propose to Cabinet colleagues that a minor legislative amendment should be made so that the new Personal Injuries Guidelines should take legal effect in respect of claims as soon as possible.”

The Government has set out in its Action Plan for Insurance Reform that it wishes to commence Sections 98 & 99 by the 31st of July 2021.

What is next?

• Until commencement of Section 98 & 99, all matters will continue to be assessed in line with the Book of Quantum.
• After commencement of Section 98 & 99, all matters that have not yet been assessed and/or provided with a PIAB authorisation, will be assessed in accordance with the PIG. The government have stated that the sections will be commenced by 31st of July 2021 at the latest.
• While stakeholders will have to consider the PIG in relation to all claims after commencement, it may be 18 months to two years before we see any Judgements making awards under the new framework.