PI Guidelines 2021
Personal injuries guidelines
Personal injuries guidelines adopted by the Judicial Council , including any amendments adopted (“personal injuries guidelines”) contain general guidelines as to the level of damages that may be awarded or assessed in respect of personal injuries. The guidelines may include guidance on any or all of the following:
- the level of damages for personal injuries generally;
- the level of damages for a particular injury or a particular category of injury;
- the range of damages to be considered for a particular injury or a particular category of injuries;
- where multiple injuries have been suffered by a person, the consideration to be given to the effect of those multiple injuries on the level of damages to be awarded in respect of that person.
Duties of Court
The court shall, in assessing damages in a personal injuries action commenced on or after the date on which the Judicial Council Act came into operation—
- have regard to the personal injuries guidelines in force, and
- where it departs from those guidelines, state the reasons for such departure in giving its decision.’,
The court shall have regard to the Book of Quantum in assessing damages in a personal injuries action where the action is commenced before the date on which Judicial Council Act comes into operation, or on or after the date on which it came into operation in relation to a relevant claim where—
- an assessment was made by the Injuries Board in relation to that claim before the date of such coming into operation, and
- that assessment was not, or was deemed not to have been, accepted in accordance with that Act.’,
Consideration of PI Guidelines
Where the Council adopts amendments to the personal injuries guidelines, the court shall continue to have regard to the personal injuries guidelines in force immediately prior to the adoption of the guidelines as amended in assessing damages in a personal injuries action where the action is commenced—
before the date on which the guidelines as amended are adopted, or
on or after the date on which the guidelines as amended are adopted in relation to a relevant claim where— an assessment was made under section 20 of the Act of 2003 in relation to that claim before the date of such adoption, and that assessment was not, or was not deemed to have been, accepted in accordance with that Act.
Duties of Injuries Board
In making, on or after the date of coming into operation of Judicial Council Act , an assessment in relation to a relevant claim of the amount of damages for personal injuries the claimant is entitled to, Injuries Board assessors shall—
- have regard to the personal injuries guidelines in force, and
- where they depart from those guidelines, state the reasons for such departure and include those reasons in the assessment in writing
Committee
The Personal Injuries Guidelines Committee in preparing draft personal injuries guidelines or draft amendments to personal injuries guidelines shall have regard to the matters set out below. The Board of the Council in reviewing the draft guidelines or draft amendments, may have regard to such of those matters as it considers appropriate for the purposes of its review.
The matters to be considered are
- the level of damages awarded for personal injuries by courts in the State, and courts in such places outside the State as the Committee of the Council or the Board or the Board, as the case may be, considers relevant;
- principles for the assessment and award of damages for personal injuries determined by the High Court, the Court of Appeal and the Supreme Court;
- guidelines relating to the classification of personal injuries;
- the need to promote consistency in the level of damages awarded for personal injuries;
- such other factors that the Committee or the Board, as the case may be, considers appropriate including factors that may arise from any records, documents or information received, consultations held, research conducted or conferences, seminars or meetings organised.
The court shall, in assessing damages in a personal injuries action—
- have regard to the personal injuries guidelines , and
- where it departs from those guidelines, state the reasons for such departure in giving its decision.”,
Overview
The within Personal Injuries Guidelines (“the Guidelines”) were adopted by the Judicial Council under s. 7 of the Judicial Council Act 2019 (“the 2019 Act”) on the 6th day of March 2021. They follow from draft Guidelines prepared by the Personal Injuries Guidelines Committee (“the Committee”), established under s. 18 of the 2019 Act, which catalogued the level of damages which it considered might fairly and justly be awarded in respect of varying types of personal injury.
It is widely accepted that the making of an award of general damages for pain and suffering is a somewhat artificial task. It involves the judge seeking to convert the pain and suffering of a given claimant into a monetary award which he or she considers to be reasonable by way of
compensation. That is a difficult task and one which has historically led to judges making widely varying awards of damages in respect of relatively comparable injuries, a result which not only offends the principle of equality before the law but results in unnecessary appeals and the incurring of additional costs, apart altogether from the burden that such appeals place on the Courts’ own scarce resources.
These Guidelines seek to promote a better understanding of the principles governing the assessment and award of damages for personal injuries with a view to achieving greater consistency in awards notwithstanding that cases will invariably have their own unique features.
It is important to record that the Guidelines were prepared, as required, having regard to the matters set out in s. 90(3) of the 2019 Act, namely:
- the level of damages awarded for personal injuries by courts in the State;
- the level of damages awarded for personal injuries by courts in such places outside the State as the Committee considered relevant;
- the principles for the assessment and award of damages for personal injuries as determined by the High Court, Court of Appeal and Supreme Court;
- guidelines relating to the classification of personal injuries;
- the need to promote consistency in the level of damages awarded for personal injuries; and,
- the other factors referred to in the Report of the Committee forwarded to the Board with the draft Personal Injuries Guidelines on the 9th day of December 2020.
It is also relevant to note that s. 99 of the 2019 Act amends s. 22 of the Civil Liability and Courts Act 2004 so as to provide:
(1) The court shall, in assessing damages in a personal injuries action—
- have regard to the personal injuries guidelines (within the meaning of section 2 of the Judicial Council Act 2019), and
- where it departs from those guidelines, state the reasons for such departure in giving its decision.”
Accordingly, whilst the Court retains its independence and discretion when it comes to making an award of general damages, it is mandatory for the Court to make its assessment having regard to the Guidelines subject always to the proviso that where it chooses to depart from the Guidelines it should detail, in its judgment, the considerations which warranted that departure.
What follows is a brief summary of how the Guidelines should be employed.
General principles
To the forefront to the mind of every trial judge when making an award of general damages should be the principles which underlie the Court’s jurisdiction. Those principles require awards of damages to be fair and reasonable to both claimant and defendant. Awards must be proportionate to the injuries sustained and must also be proportionate when viewed in the context of awards of damages commonly made in cases involving injuries of a greater or lesser magnitude (per Denham J. in M.N. v. S.M. [2005] IESC 17 and Clarke C.J. in Morrissey v. HSE [2020] IESC 6). Important in this regard is the fact that in these Guidelines the most devastating and catastrophic of injuries will attract an award of general damages of in or about €550,000.
Use of Guidelines
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 in the Guidelines which most closely matches that supported by the evidence. Brief submissions should also be made as to
where, within the relevant bracket of damages, the claimant’s injuries should be located in terms of severity i.e. top, middle or bottom, having regard to the evidence, the presence or absence of other lesser injuries and all relevant considerations.
Having considered the evidence in a careful and sensitive manner the trial judge should reach his or her findings of fact concerning the claimant’s injury and should then proceed to consider how, in light of those findings and the submissions made, the Guidelines should impact on the Court’s award. The obligation on the part of the trial judge to have regard to the Guidelines is mandatory as is his or her obligation, should he or she consider that the justice of the case warrants an award above the level of damages proposed for that or a similar injury in the Guidelines, to state his or her reasons for so departing.
Multiple injuries
The assessment of general damages in cases involving multiple injuries gives rise to special difficulty given that in these Guidelines each injury is valued separately. The principal difficulty stems from the fact that there will usually be a temporal overlap in the injuries sustained such that if each injury was to be valued separately the claimant would be overcompensated to the point that the award would be unjust to the defendant and disproportionate when compared with other awards commonly made for other greater or lesser injuries. Each injury will, of course, cause additional pain and suffering which must be reflected in the award, but the question is how to ensure that the award will be just in light of the overlap of the injuries.
In a case of multiple injuries, the appropriate approach for the trial judge is, where possible, to identify the injury and the bracket of damages within the Guidelines that best resembles the most significant of the claimant’s injuries. The trial judge should then value that injury and
thereafter uplift the value to ensure that the claimant is fairly and justly compensated for all of the additional pain, discomfort and limitations arising from their lesser injury/injuries. It is of the utmost importance that the overall award of damages made in a case involving multiple injuries should be proportionate and just when considered in light of the severity of other injuries which attract an equivalent award under the Guidelines.
Pre-existing condition
If a claimant has a pre-existing condition that is aggravated by an injury for which the court is assessing compensation, it should have regard only to the extent to which the condition had been made worse and the duration of any increased symptomology.
Injuries which do not fall within identified categories within the Guidelines
It is conceivable that courts will encounter claims in respect of injuries which are not included in these Guidelines. This is due to the methodology adopted by the Committee which was to draw up the Guidelines based on data assembled from awards of damages made for particular types of injuries in this and other comparable jurisdictions. Where there was either no data or insufficient data in respect of a particular type of injury it was considered inadvisable to depart from the agreed methodology to propose brackets of damage for such injuries. For this reason, the Guidelines do not include many rarely encountered injuries such as the loss of an ovary,
the severance of a nerve or artery or female genital mutilation, to name but a few. In any such case the structure established by the Guidelines may nonetheless provide assistance. 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 in the Guidelines to ensure that the award made will be fair, just and proportionate within the scheme of damages therein provided for. Finally, all awards of damages made in respect of injuries not specifically covered by these Guidelines will bear upon the review of the Guidelines which is required to take place within three years of their adoption by the Council.