In the trenches

The reasons for the egregious treatment of small businesses by insurance companies have been argued to the point of tedium, but it bears saying one more time.

The outrageous increase in premiums and, in many cases, outright refusal to quote certain industries has little or nothing to do with damages – which have not increased, but in fact decreased, over the course of the last six years.

The level of damages in England and Wales are often cited as an antidote to our insurance crisis. This is patent nonsense that is not backed up by a shred of evidence.

What we do know is that damages are lower in that jurisdiction but, as demonstrated by UCC economist Martin Kenneally (see September Gazette, p40), motor insurance premiums are, in fact, higher there than in this country.

Calculation of premiums

All the evidence suggests that damages award levels play no substantial role in the calculation of premiums.

Be that as it may, the furore around the issue and the successful lobbying by the insurance industry and various business groups to Government has convinced the legislature that the recommendation of the Personal Injuries Commission to provide a power to the proposed Judicial Council to produce personal injuries guidelines should be prioritised.

This is a perfectly laudable objective and has resulted in the judicial council legislation being fast-tracked.

Political mood-music

This would not be a problem were it not for two factors. The political mood-music was less ‘gentle classical’ than it was ‘heavy metal’. Although the Minister for Justice was judicious and measured in his pronouncements, the same cannot be said for some of his colleagues.

Much was made of the necessity to substantially reduce damages. This may create an issue if a constitutional problem arises in the future, given the clear necessity for the legislature to keep their counsel on the level of damages – which is clearly a matter for the courts, as envisaged by the doctrine of the separation of powers.

Onerous timeline

A further issue arises, however: the undue haste with which the legislation was ultimately drafted and passed. In the first instance, it has created a timescale that is highly optimistic for a judiciary that is also expected to dispense justice over the same period.

Secondly, however, it does not seem to have considered the ramifications of creating a new set of guidelines that may be entirely at variance with those currently in place – the Book of Quantum.

Potential pitfalls

Before examining these potential pitfalls, let’s look, in summary, at what the legislation actually proposes.

The Personal Injuries Guidelines Committee (PIGC) cannot come into existence until the Judicial Council itself comes into being. How long this will take is unclear, as it presumably will require some formal infrastructure around it.

Once the council has commenced operations, it will, at its first meeting, specify a date on which it will establish a PIGC, not later than three months after that first meeting.

The PIGC will comprise one judge from each of the Supreme Court, Court of Appeal, Circuit Court and District Court, two judges of the High Court, and one other judge from either Circuit Court or District Court. All seven judges will be nominated by the Chief Justice, who will also determine the chairperson.

Damage awards

There will be no membership outside of these seven judges, and they alone will determine the guidelines. However, they may consult with anyone they deem appropriate. In this regard, specific mention is made of PIAB.

In addition, they may seek records or conduct research on damages awards, both here and abroad, as well as refer to settlements.

The first meeting must take place within one month of establishment of the PIGC. While these timelines are perfectly reasonable, the ambitious and probably unrealistic element is the requirement to produce the first draft of guidelines to the board of the council within six months of establishment.

The judges will have to find time outside of their day-to-day court hearings to complete this hugely onerous task.

Separation of powers

The content of the guidelines is critical. Although much discussion has taken place in the media, the Dáil, and in the pub as to the appropriate level of damages, our judiciary, in the form of the PIGC, will be aware of the separation of powers and will have regard only to the legislation.

Section 90(3) of the act sets out the matters it must consider in preparing or reviewing draft guidelines.

These are the level of damages awarded in courts in this State, in courts outside this State that the committee may consider relevant, the principles for assessment of damages laid down by our superior courts, guidelines for classification of personal injuries, the need to promote consistency, and such other factors as the committee or board considers relevant arising from documents received, or other discussions or conferences.

It is notable that the level of insurance premiums in this country is not referred to as a factor in such consideration.

Issues of application

However, it is in the practical application of the new guidelines that serious and possibly constitutional problems may arise. As things stand, the Book of Quantum (BOQ) compiled by PIAB governs damages in the State. Section 22 of the Civil Liability and Courts 2004 requires the courts to have regard to the BOQ when assessing damages.

This section will now be amended to require the courts to have regard to the guidelines and, “where it departs from those guidelines, state the reasons for such departure in giving its decision”.

The difficulty arises in the passage of time between the rejection of a PIAB award and the determination of damages in a court case. This can often take several years.

If, for instance, damages in the new guidelines are considerably lower than those in the BOQ (and let’s not pretend that this isn’t the expectation of many looking in from the outside), then the provisions of section 51A of the PIAB (Amendment) Act 2007 may pose a constitutional question.

No award of costs

This states, essentially, that if a claimant rejects an award that is accepted by the respondent, and fails to obtain a higher award in court proceedings, then no award of costs may be made by the court.

So, say for instance that a claimant rejects a PIAB assessment using the BOQ as its guide and then, some years later, receives a lower award due to a radically different damages profile in the form of the guidelines, and is then denied his costs by a court with no discretion to award them, he could legitimately argue his constitutional rights have been violated.

Special circumstances

Similar considerations arise in situations of tenders or lodgements, although judicial discretion does allow for special circumstances that could be argued in that situation.

However, no such discretion exists in the case of section 51A, which has not been repealed and for which no transition period is contemplated.

Aside altogether from legal or constitutional implications, is it morally right that a personal injuries victim, injured by the negligence of another, should be penalised by a legislature that does not appear to have considered the rights of the victim to be as important as those of the wrongdoer?