Dublin, 6th March 2021: The Judicial Council has today published guidelines on general damages for members of the judiciary. It has taken almost three years since the Personal Injuries Commission published its findings in July 2018 showing that Irish awards for minor injuries are over four times higher than those made in the UK, and the UK itself is the next most generous jurisdiction in Europe.
In meetings with the Government over past number of the years, ISME has been lobbying on the extortionate price of insurance in Ireland. ISME was given assurances that the Government was committed to the Personal Injuries Commission process as the definitive route to recalibrating damages.
The 2016 Book of Quantum gave a range for minor whiplash awards of between €15,700 and €19,700. The revised values published today propose to take these awards from a low of €500 to a maximum of €12,000. While this reduction is superficially significant, in reality the lowest award category of €500 to €3,000 “Where a substantial recovery is made within six months” will be so easily circumvented that it will almost never occur. Furthermore, the fact that the new guidelines regulate PTSD awards, which is welcomed, immediately defenestrates the value of reduced whiplash awards. The standard claim presented to PIAB will become a minor neck injury (value: €6,000 to €12,000) coupled with a minor PTSD claim (value: €500 to €10,000). This combination exceeds the District Court limit, so we will continue to see rejected PIAB assessments going to the Circuit Courts, where the personal injuries industry makes its money.
This reduction will not remove the economic incentives for people to sue, even for the most inconsequential of injuries. ISME is shocked that having waited years for reform, we have been given proposals for damages which will keep the personal injuries gravy train running and this will barely dent the cost of insurance.
Awards for minor injuries are so large in Ireland, and so out of kilter with those among our EU and UK neighbours, that even reducing them by half will not remove the economic incentives to sue for minor, paracetamol injuries.
We believe the reductions in awards for minor injuries should have been closer to the 80% reduction ISME recommended in our Fair Book of Quantum, which the judiciary has ignored. Today’s announcement represents a reduction of approximately 52%. The Judicial Council also failed to take any heed of the Civil Liability Act 2018 in the UK, which discounts awards for minor injuries by even more than the 80% recommended by ISME. From May 31st this year, minor whiplash in the UK will attract an award of about £250 (€290) compared to our recalibrated award of about €7,850, a differential of 96%. The Judicial Council’s guidelines are already obsolete on the day of their publication.
The Association of Judges of Ireland sets out the circumstances in which a judge should be recused from a case here. In view of the number of judges who have an immediate family member involved in personal injuries litigation as a solicitor or as a barrister, ISME believes that a material number of judges should have recused themselves from consideration of these deliberations. We are not aware that any judges did so. Should these judicial recommendations on damages be challenged at some time in the future, will there be any judge on the bench who can declare themselves impartial in adjudicating such a challenge?
Neil McDonnell, CEO of ISME said: “It appears to us that the Judicial Council has prioritised the livelihoods of their litigation colleagues over the urgent societal need for reform. This is deeply regrettable. While we will give a more fulsome opinion in time, it is clear that Government must now fulfil its obligations to citizens and society and press on with enactment of the Civil Liability (Capping of General Damages) Bill 2019, which lapsed in the 25th Seanad.”
