Compensation awards for personal injuries has been the subject of much debate for a number of years now. The Judicial Council published the Personal Injuries Guidelines in 2021 with the aim of promoting predictability and consistency when measuring the compensation payable for personal injuries claims. These new guidelines replaced the previous guidance for assessing compensation in the Book of Quantum for all cases commenced on or after 24th April 2021. The result was a significant reduction in the value of compensation awards for personal injury cases, particularly for injuries categorised as minor to moderate type injuries.
Proposals for Change
In 2021, it had been indicated that the Guidelines would be reviewed every three years. The Personal Injuries Guidelines Committee of the Judicial Council reviewed the 2021 Guidelines last year. It made a number of recommendations for amendments to the Board of the Judicial Council at the end of 2024 in what are now being referred to as the draft Guidelines.
Below are some of the key takeaways from these draft Guidelines:
- Increased compensation awards
It has been recommended that the value of compensation awards increase by 16.7%. There are two factors that have been taken into consideration in reaching this decision. The first being the significant global and national inflation as represented by the Harmonised Index of Consumer Prices (HICP) since the introduction of the 2021 Guidelines. The second being the jurisprudence of the Superior Courts in the same period regarding the approach to be taken when assessing compensation in cases involving multiple injuries. This approach will mean that an award of compensation for the most serious and catastrophic of injuries will increase from €550,000 to €642,000.
- General Principles
The draft Guidelines reiterate the general principles set out in the 2021 Guidelines in that compensation must be fair to both plaintiffs and defendants. It should also be proportionate to the injury sustained and must also be propionate when viewed in the context of damages awarded in cases of greater and lesser magnitude.
- Use of the Guidelines
The draft Guidelines also reiterate how the Guidelines should be applied. At the conclusion of a case, both plaintiffs and defendants will be invited to make submissions identifying the following:
- The damages bracket(s) in the Guidelines that most closely corresponds with the evidence of injury or injuries; and
- Where within the bracket(s) the relevant injury or injuries fall in terms of severity.
Having made findings of fact regarding a plaintiff’s injury or injuries and having identified the relevant bracket(s) in the Guidelines, the Judge is then required to have regard to the Guidelines in arriving at an award that is proportionate and fair to all parties. It is mandatory for a Judge to state the reasons for departing from the Guidelines if it is considered that the interests of justice require this approach.
- Multiple injuries
Assessing damages in cases involving multiple injuries is difficult. The approach taken is that the dominant injury is the first injury to be considered and assessed, followed then by the non dominant injury or injuries. The Judge then applies an uplift of compensation to the value of compensation for the dominant injury in order to reflect the impact of the other non dominant injuries on the plaintiff.
The draft Guidelines acknowledge the challenges in assessing compensation for multiple injuries and has provided guidance on how to approach this assessment. The draft Guidelines state that when assessing the appropriate award of compensation in cases involving multiple injuries, the Judge must step back from the categories and assess the overall impact of all of the injuries and then place the injuries on a scale that is proportionate.
The draft Guidelines further acknowledge that achieving proportionality is likely to involve the application of a global discount to the relevant categories of injuries and that the extent of the discount will vary according to the extent of the overlap of the injuries.
- Pre-Existing conditions
The draft Guidelines reiterate the position in relation to assessing compensation in cases involving pre-existing conditions. The guidance is that when assessing compensation for an injury that is aggravated by a pre-existing condition, the Judge should only have regard to the extent to which the injury has been made worse and the duration of any increased symptoms.
- Injuries which do not fall within identified categories within the guidelines
The draft Guidelines continue to acknowledge the absence of certain categories of injuries which are not encountered frequently and how the structure of the established guidelines can still provide assistance when assessing compensation for such injuries.
When dealing with novel or infrequent injuries, a Judge should seek to value the injury by reference to the damages guided for equally significant injuries in the Guidelines to ensure that the award made will be fair and proportionate within the scheme of damages provided for therein. This is an area which will be kept under review.
Next steps
The draft Guidelines have gone before the Judicial Council for approval. It has been reported that the expectation is that the draft Guidelines will be approved. This would be the first revision of the Guidelines since they were implemented in 2021.
What does this mean for personal injuries cases? It seems that there will potentially be a three-tiered system in place for a period of time with cases yet to be assessed in line with the old Book of Quantum, cases to be assessed in line with the 2021 Guidelines and new cases being assessed in line with the proposed new draft Guidelines. It is obviously good news for plaintiffs, but has created concern for small businesses, employers and insurers.
If you require advice on how the draft Guidelines will impact you or your business, contact a member of our litigation team.
*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
