There may be trouble ahead

The Judicial Council’s Personal Injuries Guidelines are likely to see a huge influx of cases into the already overworked lower courts. Stuart Gilhooly foresees trouble ahead.

It must have been difficult to drown out the noise. Ever since the Judicial Council was set up in 2019, the singular focus of the media and the public has been on the publication of its Personal Injuries Guidelines.

The power to compile them was very much an afterthought to legislation for a body that had been in embryonic state for some years beforehand. However, it became the driving force to transform a bill that had been ambling through the legislative process at a leisurely place, becoming a missile hurtling through the Dáil.

The level of expectation was enhanced by the loud entreaties of various business lobbies and the persistent whining of a disingenuous insurance industry. The judiciary, in the form of the Personal Injuries Guidelines Committee (PIGC) that had been provided with this thankless task, to their credit, refused to be swayed by attempts to influence their decision-making.

The brazen efforts of ISME in compiling their own alternative ‘book of quantum’, which they forwarded to the committee, demonstrates the lack of basic understanding in some areas of Irish society of the constitutional requirement that judges remain independent of outside influence.

The PIGC, although entitled to consult with whomever they saw fit, decided that engagement with stakeholders about an issue that had been essentially tasked solely to the judiciary would be inappropriate – and this seemed a sensible course.

Striking the right balance

The result was a set of guidelines with which no one was satisfied – and that, counterintuitively, suggests they struck the right balance. Certainly, from the point of view of the injury victim, the cuts are severe and constitute at least 50% in places, and even more in others – particularly the extraordinary reduction in damages for a nose fracture, which appears to be about 10% of its previous value.

Of course, the usual suspects were claiming the reductions were not enough, thus giving cover to the insurers to say that they still could not commit to a reduction in premiums.

Experience tells us that the reality is that the insurers will never reduce premiums until it suits them, most likely for market reasons, and the business lobbies will never be happy until injury victims’ compensation is so small that making a claim is no longer worthwhile.

So, what does it all mean?

As far we know at time of writing, there will be a transition period, which ensures that injustice does not arise where a claimant has rejected a PIAB award or where court proceedings have been issued.

The commencement date for the operation of the guidelines has not yet been formalised, but it is likely to be early in April. From that date, the guidelines will apply to any claim that does not fall within the exceptions referred to above – that is, the PIAB Book of Quantum will continue to apply to any proceedings issued and any PIAB awards rejected before the commencement date.

This will leave a two-tier system for a time. It is intended that, at the conclusion of proceedings, the guidelines will be opened by the parties and submissions made as to what section applies to the injury or injuries in question.

It would seem inevitable that, if the Book of Quantum applies to the proceedings in question, as it clearly will for some time, it too should be opened in a similar manner in order to avoid confusion.

Matter of regret

It is a matter of great regret that the derogation for the guidelines does not also extend to claims currently before the PIAB. The argument is well made that many such claimants may have rejected offers made under the Book of Quantum regime, and will receive awards or offers of a much lower nature.

This may yet be the subject of a challenge, but would seem that it is in a different category of claim than those where awards have been rejected or proceedings issued. While the latter cases involve costs penalties where the values have changed to such a degree, it appears that any case that has not yet left the PIAB merely falls into a class where bad luck applies.

Any offers made are of a ‘without prejudice’ nature and not admissible in any court challenge that may be taken, so it is hard to see where the injustice arises, given that the guidelines must come into being at some point, and there will always be a claimant that will feel hard done by.

This doesn’t mean that it’s fair, but a political decision has been made on foot of the advice of the Attorney General, and it is not going to change.

The effect of the guidelines on practice remains to be seen, but it’s clear that it represents a sea change. The main victim of the cuts are soft-tissue injuries, particularly those of a minor nature.

While the Book of Quantum does not provide a direct comparison, the reduction to €500 to €3,000 for six months’ neck injuries; €3,000 to €6,000 for one year; and €6,000 to €12,000 for two years represents at least 50% on the original values.

While this is clearly not a problem for the many people who have never had such an injury, it will result in an injustice in some cases where the effect for that period was severe, but a full recovery occurred early.

Judicial discretion

The guidance provided by the Judicial Council does ensure that, where more than one injury occurs, the damages cannot accumulate by direct reference to the appropriate figure to each individual injury, but rather by the judge selecting the most significant one, and then providing for an uplift to reflect the other injuries suffered. This guidance does provide discretion for a judge in determining the level of the uplift.

This is not the limit of a judge’s discretion. Section 22 of the Civil Liability and Courts Act 2004 has been amended to provide stronger wording. The amendment requires a judge to have regard to the guidelines.

Where it differs from the previous wording is the change that now requires a judge to provide reasons for departing from the guidelines. When the section was originally enacted, it allowed a judge to take other matters into account besides the Book of Quantum, so the requirement to provide reasons is a very significant departure.

It is likely, however, that judges will exercise, sparingly, whatever remaining discretion they have to award outside the guidelines, and reserve it for exceptional cases.

The result is likely to be a huge influx of cases into the already overworked lower courts. The High Court – which, in fact, is currently the best-resourced original jurisdiction – will see a large reduction in its caseload, which will feed into the Circuit Court.

While there will be a consequent domino effect of some of its proceedings feeding into the District Court, both courts will require extra judges, courtrooms and support staffing. In the likely event that such further resourcing will not be forthcoming, substantial delays are inevitable.

The guidelines are accessible at www.judicialcouncil.ie/publications, and all practitioners in this area should read them carefully and familiarise themselves with them. They are due to be reviewed in three years’ time.

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