Recalibrating the Price of Pain: A Guidance Note on the Judicial Council Act 2019 and the PIGC

2020 marks an important tipping point for compensation culture in Ireland.

With the long-awaited enactment of the Judicial Council Act 2019, which will encourage stricter scrutiny of the quantum of PI damages, as well as the recent appointment of the Personal Injuries Guidelines Committee (“PIGC”), to be chaired by the pragmatic and “realistic” Ms Justice Irvine, employers and insurers alike can cautiously breathe a sigh of relief.

Reform: A long time coming

A downward pressure on the level of damages awarded can be gleaned from case law from as far back as 2005. In M.N. v S.M. [2005] 461, the Supreme Court reduced a High Court award of general damages from €600,000 to €350,000, while also laying down a rigorous proportionality test in respect of quantum.

Furthermore, there has been marked pressure on the level of High Court awards, driven in large by Ms Justice Irvine of the Court of Appeal. Her statement in Nolan v Wirenski [2016] IECA 56, for example, that “modest injuries should attract moderate damages” is often quoted.

Similarly in Gore (A Minor) v Walsh & Anor [2017] IECA 278, she advocated for a common sense approach to damages, stating that an award must be “objectively reasonable in light of the common good and social conditions in the State”.

However, whilst there have been some recent reductions in awards by the High Court and Court of Appeal, the same cannot be said for awards by the courts of lower jurisdiction.

These concerns culminated in the establishment of the Personal Injuries Commission. Mr Justice Kearns, as chairman thereof, highlighted the developing compensation culture in Ireland, with the average Irish award for a soft tissue injury being more than four times that in England.

As a solution, the Commission strongly recommended the establishment of a statutory body responsible for monitoring award levels, while also effecting a “recalibration” of sorts of the existing Book of Quantum.

It is against this backdrop that the Judicial Council and the Personal Injuries Guidelines Committee were established.

The Current Position

The PIGC was established as part of the move towards a more “fully-fit for purpose court system”.

The Committee’s function is to liaise with PIAB and conduct research into the level of awards in other jurisdictions in order to prepare a comprehensive set of guidelines for awarding damages in personal injuries claims.

The first draft of these guidelines is to be produced within six months after the Committee’s establishment. If approved by the Board of Judicial Council, they will become binding on courts and reasons will have to be given for departing from them in the particular circumstances of the case.

Additionally, the PIGC will have the legal power to override GDPR requirements and request submission of information which it deems relevant to its work.

Notably, while the Committee is allowed total independence by law in deciding whether and in what way to amend the current guidelines set by Book of Quantum, the fact that it is chaired by Ms Justice Irvine, who has been characterized as adopting a notoriously ‘realistic’ approach to personal injuries compensation rates, may arguably be indicative of the trend its guidelines might follow.

However, this view is was unequivocally quashed by Ms Justice Irvine in her letter to Minister of State Michael D’Arcy, where she insisted that the Committee will not be influenced by the cost of compensation on any business, community or volunteer group due to its “total independence”.

A Solution? Too early to tell

The changing tides in the area of quantum of damages will likely come as a comforting development to defendants in personal injuries actions.

Although the courts are opting to exercise sharper scrutiny over the level of damages awarded in personal injuries cases, it is difficult as of yet to predict with any level of certainty whether the PIGC will succeed in achieving such a large-scale “recalibration” of the Book of Quantum.