The Government’s current plan for providing guidance to the courts on the size of personal injury awards is likely to resist any challenge to its constitutionality, the Law Reform Commission has said.
A sub-group set up by Judicial Council, the Personal Injuries Guidelines Committee (PIGC), is to produce draft guidelines later this year.
The Programme for Government commits the coalition to considering the need for a constitutional amendment to enable the Oireachtas to directly set down guidelines on award levels.
However in a report published today, the commission notes a mandatory cap on awards established by the Oireachtas by way of primary legislation would be at risk of a constitutional challenge.
The guidelines being prepared by the Judicial Council will eventually replace the Book of Quantum, which is produced by the Personal Injuries Assessment Board, and to which judges currently have to have regard when deciding on general damages.
The new system is likely to continue to involve a “cap” on personal injury awards of €500,000 for the most catastrophic of cases – a figure that can be exceeded if a court believes exceptional circumstances justify such a move.
In a recent Supreme Court decision in the case of the Ruth Morrissey, who died earlier this year at the age of 39 from cervical cancer, the court confirmed that the cap should be €500,000, an increase of €50,000 on the previously generally recognised figure.
The awards for general damages for less that catastrophic injuries are set by the courts using previous court rulings that address how proportionality should be determined, while taking into account the €500,000 “cap”.
The new report, published today, Capping Damages in Personal Injuries Cases, examines four types of legislative model for capping damages, including one introduced by Fine Gael senator Anthony Lawless in 2019, by way of a private members’ bill.
The commission decided that the model outlined in the Civil Liability (Capping of General Damages) Bill 2019, might be open to constitutional challenge because of the role it would assign to the minister in the capping of damages awards.
It also decided that a model involving a mandatory cap being set by the Oireachtas by way of legislation, would be at risk of constitutional challenge.
A fourth model examined, which involved a mix of Australian and English law, would probably be able to resist a constitutional challenge, the commission decided.
The report says it would be appropriate that the new proposed regime centred on the Judicial Council Act 2019 should be given time to be applied in practice.
Under the new proposed regime, the courts will be obliged to state the reasons for any departure from the new guidelines, something that was not the case with the Book of Quantum.
While caps can be placed on general damages – compensation for pain and injury – this is not the case in relation to special damages, which are for any pecuniary loss that arises as a result of being injured.
The report quotes a recent Court of Appeal decision in this regard, where the court said it was “mandatory for the court to approach its calculation of future pecuniary loss on a 100 per cent basis regardless of the economic consequences that the resultant award may have on the defendant, on the insurance industry, or on the public finances.”
Since 2015, the Court of Appeal has developed a three-point scale for deciding on proportionality for general damages, with references to minor, middling and more severe injuries, and the type of awards they should lead to.
The report notes that this development has on occasion reduced general damages awards given by the High Court for minor injuries, sometimes by as much as fifty per cent.
In other instances, however, the report notes, the Court of Appeal has increased awards where it considered the injuries were at the more severe end of the scale.