PERSONAL INJURIES

Challenge to New Guidelines Dismissed by High Court; Lower Damages Are Here to Stay.


High level awards were, in recent years, feeding into higher premiums and the government was under pressure to introduce changes.  In March 2021 the Judicial Council, essentially all of the judges, passed the new judicial guidelines under the Judicial Council Act 2019.  These provided for much lower awards in PI cases and one claimant who had been told her case was worth up to € 34,000, but who was only assessed at € 3,000 by PIAB, challenged the new guidelines and related legislation.   She applied to PIAB before the new rules took effect but was assessed under the new regime.


The plaintiff complained that the 2019 Act interfered with judicial independence and that the guidelines should not be retrospectively applied to her. She claimed her case should be assessed under the old rules as she applied to PIAB some years before the new and reduced awards came into force.

The court looked at section 90 of the 2019 Act and found that the court must consider the level of damages awarded in the state and other jurisdictions, principles for assessment and the need to promote consistency in the level of compensation for personal injury claims.


As for the issue of independence of the judges, the court held that existing legislation allowed a court to depart from the guidelines where reasons were given by the judge and this did not represent any substantial change to the current system under the Book of Quantum where it was desirable that a court should refer to its provisions.


As to the plaintiff’s case being undermined by retrospective rules, the court found the plaintiff had the right to have damages assessed in accordance with the law applicable at the time of assessment but did not have a right to any specific sum contained in the Book of Quantum.    The reduction in awards, which was in keeping with public policy, did not amount to an “unjust attack” on her rights as she had claimed.


An application to PIAB was different to an assessment, and that could only be arrived at following the furnishing of all relevant information to the PIAB assessor. In this case the claimant had delayed sending all her Xrays to PIAB.


The court concluded that the guidelines were now valid as a matter of law and it found that PIAB had correctly applied the new guidelines to the claimant’s case.  Her application for judicial review of the new guidelines was therefore refused.


Delaney v the Personal Injuries Assessment Board & Others [2022] IEHC 321

PERSONAL INJURIES Contributory Negligence Reduced Award by 20%

by Snap Websites • 27 July 2023
The plaintiff was a schoolgirl when she was involved in a road traffic accident in April 2019. In the collision she hit her head and sustained injuries but had no recollection or memory of the accident. She had not been wearing a seat belt when the accident occurred. The plaintiff’s airbag was deployed as also was the defendant's but, in his case, he had been wearing his seat belt and did not incur any injury. The case proceeded to an assessment of damages with a contributory negligence claim on account of the plaintiff not wearing a seat belt. The plaintiff suffered deep abrasions to her right temple and anterior hairline. This resulted in permanent scarring to her face and caused her considerable concern in respect of her physical appearance. The plaintiff was interested in makeup and beauty therapy and, although she successfully entered a beauty therapy course, she dropped out because of her injuries. The main scar to her face was 9cm by 4cm and was noticeable at a conversational distance. She was very self-conscious about her scars and wore heavy makeup to conceal them as much as possible. The plaintiff was also diagnosed with psychological injuries following the incident. It was considered that she had developed an adjustment disorder with depressive features at the time. She was prescribed antidepressant medication but stopped taking it after a few days. The plaintiff continued to experience soreness on the scar on her wrist after the accident. She also complained of headaches post-accident. In reviewing the evidence, the judge considered the contributory negligence caused by the plaintiff in her not wearing a seat belt. In a High Court case of O’Sullivan v. Ryan [2005] IEHC 18 the court measured that at between 10 and 25%. There was a dispute over whether the plaintiff hit her head off the side window which was smashed or the windscreen but on reviewing the expert evidence the court was satisfied that the injury was caused by the plaintiff hitting her head off the windscreen. The contributory negligence was assessed at 20%. There was some conflicting evidence on which was the dominant injury and its consequent value in injury terms. The court ruled that the dominant injury was the facial scarring. In measuring the value to be placed on the injuries the court considered a previous case involving a dancer who incurred facial scarring and who received €50,000 in damages though in that case the dancer continued in his career whereas in the case before the court, the plaintiff did not. The court ruled that the injury be valued at €60,000 for the dominant injury and other lesser injuries at €30,000 and special damages of €17,596 amounting to a total of €107,596 reduced by 20% for contributory negligence giving a net of €86,076 damages awarded. Power v Malone [2023] IEHC 366.

PERSONAL INJURIES

by Snap Websites • 20 March 2023
First Award Under New Damages Guidelines. After lengthy lobbying by insurance companies, who were charging higher premiums to cover larger PI awards in the courts, the government introduced, in April 2021, new Guidelines for the courts in their determination of their awards of damages. In a High Court case in July 2022, the judge was tasked to decide the level of damages for a plaintiff girl who was injure d following an accident but who developed Post Traumatic Stress Disorder (PTSD) for several months thereafter. The case was one of the first PI cases where the court had to decide on the damages by applying the new Guidelines. Some commentators were expecting the eventual award to be much reduced, but the actual award was higher than expected. The 14-year-old girl was struck by a car and knocked down. All parties agreed that she had suffered from psychological injuries after the accident, and these were diagnosed as PTSD. She also had some minor injuries and a small scar below her buttock. However, her main injury was PTSD, and this finding was supported by her parents and schoolteachers. She suffered from flashbacks, nightmares, panic attacks and poor attention at school resulting in a decline in her overall academic performance. She had received some professional counselling but would require more although she was progressing satisfactorily. The net issue at the hearing was the assessment of her injuries under the new Guidelines. The plaintiff maintained her injuries were somewhere between moderate and serious PTSD. The moderate type would result in an award of between €10K to € 35K while the serious version would result in a higher award between € 35k to €85K. Not surprisingly, the insurance company argued that her injury fell within the moderate category and should be valued at € 20k. The task of the court was to determine how the new Guidelines should impact on an award of damages. Importantly, it also noted that a court could depart from the Guidelines if the justice of the case requires but must set out concise reasons for doing so. While serious PTSD typically involved a disability for the foreseeable future, the moderate PTSD category envisaged that the plaintiff will have largely recovered, and any continuing effects will not be grossly disabling by the time the case comes on for hearing. The court was satisfied that the plaintiff’s PTSD fell into the moderate category but considering the negative impact on her schooling and Leaving Certificate prospects, it fixed an award at the top end of the moderate category being € 35k. The court also awarded her € 25k for her scar and soft tissue injuries which had largely settled. This brought the total sum awarded to €60k. This case illustrates how a fear of much lower court awards following the new Guidelines appears to be misplaced. Lipinski (A Minor) v Whelan [2022] IEHC 452