Personal Injury 2024: A Snapshot of a Year in Review

2024 has been a significant year for personal injury law in Ireland. Nicola Kiely, Partner CKT reviews the past year including:

• The Supreme Court in Delaney upheld the legality of the Personal Injury Guidelines (‘the Guidelines’) in April 2024;
• The Court of Appeal overturned a High Court decision on the quantum of damages for a multiple injury claim in July 2024;
• The High Court and Circuit Court made Orders throughout 2024 having costs implications for both plaintiff and defendant;
• In October 2024, the Injuries Resolution Board (IRB) released two Reports including their Annual Report for 2023 and an Award Values Report for the second half of 2023;
• Finally and most importantly, the Judicial Council’s Personal Injuries Committee in December 2024 drafted the first proposed update on the Guidelines since they were first introduced in 2021.

1. Multiple Injury Claims falling within the remit of “the Guidelines”

It is clear that the calculation of damages for “multiple injury claims” continues to be problematic as each injury is valued separately under the Guidelines. The body of case law from 2021 to 2024 for such claims is relatively small and identification of the dominant injury does not appear to cause difficulty for the Courts. However, jurisprudence confirms the Court’s consideration and assessment of the uplift in multiple injury claims continues to be complicated with decisions from Lipinski v Whelan in 2022 to O’Sullivan v Ryan in 2024 all confirming the Courts adopt different approaches when calculating and/or assessing the uplift.

Collins v Parm and Others 2024

The Court of Appeal handed down an important judgment in July 2024 when it overturned a High Court judgment on the quantum of damages for a multiple injury claim. It held the High Court award of damages “was so disproportionate as to amount to an error of law”. In addition, the High Court failed to have regard to the Guidelines and did not provide any reasoning as to why it departed from the Guidelines.

High Court

In that case the High Court identified the plaintiff’s psychiatric injury as the dominant injury and assessed it at €55,000. However, the Court did not confirm what section of the Guidelines it was referring to when calculating this amount. The Court assessed the multiple physical injuries at €40,000, awarding a total sum of €95,000 for general damages.

The defendant appealed and argued that the general damages were excessive and disproportionate; the Court did not provide any reasoning for the uplift and there was a failure to refer to the Guidelines or to have regard to comparable cases.

Court of Appeal

Mr Justice Noonan noted the assessment of damages in multiple injury claims is difficult as it is necessary to value each injury separately. There is a risk of overcompensation when valuing each injury separately.

The Courts must embrace fairness and proportionality when assessing damages in multiple injury claims. Noonan J stated the judge should, where possible, identify the relevant damages bracket in the Guidelines that best resembles the “most significant” of the claimant’s injuries which should then be valued and uplifted to reflect all the other injuries. Noonan J continued that the Court has an obligation to have regard to the assigned values for each injury and not just the dominant or most significant one. The Guidelines draw attention to the risk of overcompensation from valuing each injury separately which would occur if the values were simply added together. The Court must consider the temporal and sometimes physical overlap between the injuries. Failure to do so would result in a disproportionate and unfair result. The Court can apply a deduction from the value assigned to the plaintiff’s lesser injuries or from the initial aggregate amount.

The Guidelines do not prescribe the method of calculation that the Courts should use when applying the deduction.

Mr Justice Noonan valued the dominant injury at €35,000 and the cumulative effect of the non-dominant/lesser injuries at €30,000 which the Court discounted by a factor of one third or 33.3% to fairly reflect the temporal overlap of injuries. The Court of Appeal awarded general damages of €55,000 – representing a 42% reduction of the High Court award of general damages of €95,000 before a final reduction of 15% for contributory negligence was factored in.

The Judicial Council’s Committee on personal injuries appear to have recognised the difficulties the Courts have when assessing multiple injury claims and in particular the methods for assessing the uplift for non-dominant injuries. The proposed amendment to the Guidelines provides updated guidance to the Courts following a review of the jurisprudence since the Guidelines were first adopted in 2021. The proposed amendments to the Guidelines suggest that to achieve a just result, the judge must “step back” from the categories in order to assess the overall impact of all the injuries on the claimant and place them on the scale in a way that is proportionate. Interestingly, the requirement for a judge to “step back” was referenced by Coffey J in Keogh v Byrne. In that judgement, Coffey J said a trial judge should “step back” from the individual injuries to holistically value the cumulative effect of all the injuries on the plaintiff and to adjust the ultimate reward to avoid over or under compensation. The decision of Keogh v Byrne is one of the authorities cited by Noonan J in his Court of Appeal judgment.

Finally, the draft updates to the Guidelines state “achieving proportionality is likely to involve the application of a global discount to the relevant categories. The extent of the discount will vary according to the extent of the overlap of the injuries”. However, the proposed amendments do not provide guidance to the Courts on what factors should be considered when calculating the “global discount”. The language is of assistance. Evolving from “uplift” in the 2021 Guidelines to a “global discount” in the draft 2024 updates/amendments. Supporting the requirement that the trial judge must “step back” to carry out an overall assessment of the injuries to ensure proportionality is achieved.

2. Costs

In June 2024, Mr Justice Kennedy in the High Court, imposed a 5% costs penalty on party and party recoverable costs for failure to comply with Section 14 of the Mediation Act 2017. The plaintiff’s solicitor had failed to advise their client on the option of Mediation. The Court noted such obligations were not “unreasonable or burdensome”. The obligation to advise on the option of Mediation applies to both plaintiff and defendant solicitors.

In October 2024, Ms Justice O’Sullivan made a Costs Differential Order against a plaintiff in a Circuit Court case following an award of €7,500 for leg and back injuries. Liability was not in issue. The Court was being asked to assess damages only. The plaintiff had been involved in a road traffic accident one year earlier and had carried 50% of those injuries forward to the index accident. The Plaintiff also had a prior accident history. The defendant argued the claim should not have been brought in the Circuit Court and Ms Justice O’Sullivan accepted it was an appropriate case for making a Costs Differential Order against the Plaintiff.

In November 2024, the High Court made an award of €17,500 for general damages to a plaintiff for injuries involving dermatitis to both hands where a full recovery was expected. Ms Justice Jackson considered Section 8 of the Civil Liability and Courts Act, 2004 regarding the failure of plaintiff to serve a written notice on the alleged wrongdoer stating the nature of the wrong alleged against before the expiration of two months from the date of the cause of action, or as soon as practical thereafter the Court can draw such inferences as appear proper and make no Order as to costs

The matter was put back to a later date to consider submissions regarding the calculation of special damages and in respect of costs applications. It remains to be seen if there will be costs implications for the plaintiff’ s non-compliance with Section 8 of the 2004 Act.

3. Injuries Resolution Board Reports 2023

In October 2024, the Injuries Resolution Board (IRB) published their Annual Report for 2023.

The Annual Report confirmed the number of personal injury claims made to the IRB in 2023 increased by 10% on 2022. Representing an increase in motor liability claims. In contrast, there was relative stability in both employer liability and public liability claims. However, the total volume of claims at 20,263 remained 35% lower than in 2019.

The Personal Injuries Award Values Report for the second half of 2023 also confirms the percentage of severe/serious injury awards was more than twice that of 2021, increasing from 2% to 5% of claims.

However, the percentage of claims for minor injuries reduced from 86% to 78% for the same timeframe.

The median award for the second half of 2023 was €12,212 i.e. 34% lower than in 2020 before the Personal Injuries Guidelines were introduced.

The Report noted that 61% of claims are now valued at under €15,000 compared to 30% of claims in 2020.

4. Draft Personal Injuries Guidelines

The Guidelines are required under the terms of the Judicial Council Act 2019 to be reviewed every three years. On 12 December, the Judicial Council’s Personal Injuries Committee published draft updates/amendments to the Guidelines following consideration of (1) the significant global and national inflation that has occurred since the Guidelines were first introduced in 2021 and (2) emerging jurisprudence of the Superior Courts regarding assessment of damages in multiple injury claims.

The draft updates include a recommendation to adjust the values in the Guidelines to take account of a rise in the Harmonised Index of Consumer Prices (HIPC) since the Guidelines were first introduced in 2021 by factoring in an average inflation rate of 16.7%. For further information please see our Article written by Barry Kelleher.

Conclusion

In April 2024 we saw the Supreme Court uphold the Personal Injury Guidelines as constitutional and legally binding. Seven months later the Judicial Council’s Personal Injuries Committee published proposed updates to the Guidelines. The proposed updates will be considered by the Judicial Council at the end of January 2025 before proposals will be referred to the Minister for Justice for review and to the Oireachtas for approval.

The proposed draft updates to the Guidelines suggests that 2025 will be another key year for the ever evolving personal injury landscape in Ireland.  If the proposed updates are accepted, parties may have to consider if a claim falls within the remit of the old Book of Quantum (2004 revs.), the first set of Personal Injury Guidelines (2021) or the second set of Guidelines (date to be confirmed).