New guidance on the amount of damages to be awarded for personal injuries*

Written by
Rachael O’Shaughnessy on
22 March 2021

At a Glance:

New Personal Injuries Guidelines will replace the existing Book of Quantum and provide new guidance on the amount of damages to be awarded for certain injuries. It appears that awards for personal injuries in Ireland, except for awards for the most serious types of injury and catastrophic injury, will be less once the Guidelines come into operation. There are substantial reductions for minor injuries and whiplash-type injuries from which there is a full recovery. 

New guidelines for the valuation of awards in personal injuries cases were adopted by a majority vote of the judges of Ireland (the Judicial Council) on the 6th March 2021. They are known as the Personal Injuries Guidelines (the Guidelines) and will replace the existing Book of Quantum, with a view to achieving greater consistency in awards for general damages for personal injuries. 

When will the Guidelines come into operation? 

A minor amendment to legislation is needed to give legal effect to the Guidelines. It is thought that this could happen within the next few weeks, although the commencement date has yet to be decided. The Guidelines are to be reviewed again before 6th March 2024 by the Judicial Council. 

Will the Guidelines apply to all existing personal injuries cases? 

The Minister for Justice, Helen McEntee TD, has said the new Guidelines will apply to all cases that have not yet been assessed by the Personal Injuries Assessment Board (PIAB). PIAB is Ireland’s independent State body which assesses personal injuries compensation in respect of personal injuries suffered by people in for example, motor accidents, work place accidents and public liability accidents. All personal injury claims must come through PIAB, unless settled early between claimants and insurers/respondents. Under the legislation which established PIAB, medical negligence claims are not included in the accidents which may be submitted to PIAB for assessment.  

Do the Guidelines apply to all personal injury awards even if caused by medical negligence? 

Yes, the Guidelines deal with all claims for general damages for pain and suffering in respect of personal injuries, however they were caused. However, as medical negligence cases do not fall to be assessed by PIAB it is thought that the Guidelines will not apply to medical negligence cases where court proceedings have already been issued before the date the Guidelines come into operation but will apply to medical negligence cases where proceedings have not been issued. 

How do the new Guidelines for future awards compare to awards made by PIAB or Judges in Ireland up until now? 

It appears that awards for personal injuries in Ireland, except for awards for the most serious types of injury and catastrophic injury, will be less once the Guidelines come into operation. There are substantial reductions for minor injuries and whiplash-type injuries from which there is a full recovery. 

How were the awards for personal injuries arrived at? 

The Guidelines contain a catalogue of injuries which have different levels of awards depending on their severity. It was considered that an amount of damages of €550,000 (increased from €500,000) would be a fair, just and proportionate amount of money in Ireland for the most serious of catastrophic injuries. The bracket for each injury was then fixed to ensure that the damages proposed for each injury in the Guidelines would be proportionate to that award and to damages proposed for lesser injuries. 

Do the Guidelines address multiple injuries? 

Yes, the Guidelines address claims involving more than one injury. It will not be a case of adding up an award for each injury. It is advised that the bracket which best represents the most significant injury should be selected in such cases and the judge should increase the amount to ensure any additional pain and discomfort resulting from the lesser injuries is fairly compensated. It will be interesting to see how this applies, for example, to a case where a claimant has suffered both a psychological and physical injury. 

Do the Guidelines take pre-existing conditions into account? 

Yes, if a claimant has a pre-existing condition that is aggravated by an injury the Guidelines state that the court is to have regard only to the extent to which the condition has been made worse and the duration of any increased symptomology. 

Are all types of injuries covered by the Guidelines? 

The Guidelines refer to 12 categories of injuries with new categories for psychiatric damage, chronic pain conditions, scarring and burns, damage to hair and skin conditions. These new categories are a welcome development. Guidance, for example for scarring, burns and skin conditions, will be of particular assistance for the ever-increasing number of cosmetic negligence claims. However, the Guidelines do not include more rarely encountered injuries such as the loss of an ovary or the severance of a nerve or artery which could, for example, be the subject of a medical negligence claim. The Guidelines state that a court when dealing with a novel or infrequent injury should seek to value the injury by reference to the damages guided for equally significant injuries. All awards of damages made for injuries not specifically covered by the Guidelines will have a bearing upon the three yearly review of the Guidelines. 

Will the Guidelines apply to PIAB cases and court settlements? 

The Guidelines will replace the existing Book of Quantum which is relied upon by PIAB in assessing awards. It is also expected that in conducting settlement talks parties will negotiate based on what they believe the court would award for the relevant injury and will therefore have due regard to the Guidelines. 

Are Judges required to follow the Guidelines exactly? 

At the conclusion of every case the trial judge should ask each party to identify by reference to the dominant injury sustained, the relevant damages bracket (and where within the bracket - either top, middle or bottom the injury falls) in the Guidelines which most closely corresponds to that supported by the evidence. It will be mandatory for judges to follow the awards as set out in the Guidelines, unless they can clearly identify facts which they rely on to make an award outside of the bracket which best corresponds to the claimant's injury. It appears that this discretion will be useful for more serious and complex cases which medical negligence cases can often be. 

The Guidelines indicate that there will be a downward recalibration on the valuation of personal injury awards in Ireland, especially for the less serious injuries. It remains to be seen whether there will be an increase in personal injuries litigation in the District Court and whether lower level High Court cases will be before the Circuit Court. Although the Guidelines resemble the Book of Quantum by grading injuries in reference to severity and ascending valuations the Guidelines outline factors to be considered when making an award and are expected to have a more significant role in personal injuries litigation. It will be interesting to see how judges (quite a number of whom did not vote in favour of them) will apply the Guidelines and to what extent judicial discretion will be used, especially in medical negligence cases.  

Conclusion 

If you have suffered personal injuries which you suspect may be as a result of negligence, it is important to obtain legal advice as soon as possible, given the implication of the new guidelines on awards once they come into force.  

Rachael O'Shaughnessy medical negligence and injury litigation solicitor
Rachael O'Shaughnessy, Solicitor

*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.