General Damages
Principles of Damages
The principle of damages is that the plaintiff should be put in the same position in so far as money can do so, in which he would have been, but for the wrong. The assessment of general damages for personal injury, in one sense, involve a relatively subjective assessment of compensation by the court. This may seem especially arbitrary in the case of serious or catastrophic personal injury. However, the law takes the approach that monetary compensation is better than nothing.
The only type of awards usually allowed is a lump-sum award. It represents a once and for all payment for all past and future losses, whether quantifiable in monetary terms or not. A 2017 Act provides that the courts with the power to make or to award or approve and provide for settlements with periodic payments to injured victims in cases of catastrophic injury, in order to provide for future care and treatment, medical needs and appliances.
Effect of Injury – General Damages
In personal injury cases, the law attempts to make some measure of compensation for pain and suffering. This includes pain and suffering to date directly attributable to the incident together with future pain and suffering and that attributable to treatments.
Compensation will be granted in principle for psychological and psychiatric conditions such as depression, nervous shock, and post-traumatic stress disorder.
The extent to which the claimant is aware of the severity of his condition may be relevant. The courts have expressed different views. The Irish courts are inclined to the view that the awards should be moderated, where the claimant has reduced capacity to appreciate the pain and suffering.
Losses life expectation raises similar complex issues. Traditionally, the courts allowed modest compensation only for loss of life expectancy.
Curtailment of General Damages
Pain and suffering raise difficult questions of measurement in an award of compensation. In the 1980s, the Supreme Court reduced a number of jury awards for pain and suffering.
It was of the view that the sums awarded greatly exceeded contemporary standards and monetary values. The decisions reflected a policy of seeking to limit the extent of compensation.
In these cases, the court curtailed what it saw to be the extravagant level of compensation granted in the case of very severe lifelong injuries. The court effectively set a monetary limit on compensation for pain and suffering for the most serious personal injury case. The court rationalised the approach on the basis that it did not affect monetary compensation for actual loss and quantifiable needs.
Awards which were disproportionate or extravagant in its view went beyond compensation and sought to punish the claimant/defendant. The Supreme Court was of the view that the level of awards should be referral to the ordinary standard of living in the country, general levels of income and things upon which the claimant might be expected to spend money.
Juries and Appeals
Until the early 1990s, juries were empanelled in most civil cases. Legislation has limited the right to a jury trial in a civil case to defamation and certain deliberate civil wrongs such as false imprisonment, assault and battery. Juries assess the measure of compensation.
Due to the belief that the juries were making overly generous awards, juries were removed from most tort cases, including in particular personal injuries cases. The cases are heard by a judge sitting alone.
Appeal courts were especially reluctant to interfere with awards by juries, provided that they were properly directed. This approach still largely applies in relation to appeals in cases heard by judges sitting alone. The appeal court, having not heard and assessed the evidence first-hand, remain reluctant to interfere with awards.
PIAB
The Personal Injuries Assessment Board was established as a State agency in 2004. Its function is to provide an independent assessment of the value of personal injury claims.
A claim must be submitted to the Board within a fixed time limit before legal proceedings issue with a medical report and proof of expense. The Board medically reviews the claimant and assesses the claim value.The statute of limitations is Suspended during this period
The person/entity against the claim is made, the respondent may decline to accept liability and a certificate issues to enable personal injury proceedings to commence . If the respondent agrees to proceed with the assessment an assessment is made in monetary terms of general and special damages. If this is rejected by either party the Board issues a certificate to allow proceedings to issue. The statute of limitations is suspended during this period.
Civil Liability and Courts Act 2004
The Act
- shortened the time limit for a personal injury claim (suspended while the case was referred to PIAB,
- provided for a special personal injury summons with greater detail upfront
- provided for earlier more comprehensive disclosure
- required a notice of claim letter within 2 months, failure to furnish which could lead to adverse inferences
- introduced provision for mediation conferences
- required notice of offer of settlement (not known to the judge)
- provided for possible pre-trial hearings of certain issues.
Book of Quantum
The first Book of Quantum was published in 2004 in order to assist the Personal Injuries Board in assessing general damages for various types of personal injury claims. It sets out general guidelines on the amounts of awards appropriate for specific types of injuries. The Book of Quantum does not deal with psychological and psychiatric injuries.
The Book of Quantum is recognised by statute. The court, in assessing damages in a personal injury claim, must have regard to the Book of Quantum. The court is not prohibited from having regard to other matters when assessing damages in a personal injury case.
Most judges have been positively disposed towards the Book of Quantum. It has the merit of bringing relative uniformity. It provides a marker against which cases might be assessed. It reflects practice in the United Kingdom to some extent. In England and Northern Ireland, the Judicial Studies Board periodically issues guidelines for assessing General Damages in personal injury cases.
Other judges have taken a view that the Book of Quantum is no more than a useful guide. Each individual case must be assessed on its merits. On this view, the book is simplistic and does not differentiate between different claimants in accordance with age or other significant differences in circumstances.
Later Experience
The Book of Quantum was not updated from 2004 until 2016. Some judges indicated that it was regrettable and unacceptable that the Book had not been updated for some time after it was first published in 2004. Some judges had taken the approach that regard may be had to the time elapsed since it was published.
In 2007, the High Court held there was a right to legal representation in relation to the Injuries Board and the Board was required to deal with applicant’s solicitors. Over time, more cases were dealt with outside the Injuries Board. The rate of acceptance lowered resulting in more cases going to litigation.
A second edition of the book of quantum was published in 2016 was published in 2016.
Court Reforms
The financial limits for the Irish Courts were increased up to €15,000 for the District Court, €15,000 to €60,000 for the Circuit Court and greater than €60,000 for the High Court in 2014. The effect was to take many cases into a court at a lower level of jurisdiction.
The Court of Appeal was established in 2015 following a Constitutional referendum. In a series of judgements since 2016, it has sought to lay down principles on the award of general damages. In many cases, it laid down benchmarks for awards, lowering the High Court’s award in the process.
See the chapters on the development of awards of general damages 2014-2021.
Judicial Guidelines 2021
The Personal Injuries Guidelines Committee (PIGC) was established under the Judicial Council Act 2019 was tasked with drafting new guidelines for awards of general damages in personal injuries cases. They now provide that the court shall, in assessing damages in a personal injuries action commenced on or after 24th April 2021 —
- have regard to the personal injuries guidelines (within the meaning of that Act) 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 24th April 2021 or on or after the date 24th April 2021 in relation to a claim subject to Injuries Board assessment where an assessment was made before the date of such coming into operation, and that assessment was not, or was deemed not to have been, accepted
The last provision (pre-24th April 2021 case) does not operate to prohibit a court from having regard to matters other than the Book of Quantum when assessing damages in a personal injuries action.
PIAB Reform
Under the Personal Injuries Resolution Board Act 2022, the Personal Injuries Assessment Board was renamed “The Personal Injuries Resolution Board”. This reflects that the Board offers mediation as a means of resolving claims. Claimants may make an application to the PIRB for resolution of their claim by mediation, assessment or both.
Both parties must consent to mediation. If they do a mediator is appointed from a panel by the PIRB or a person appointed by the board.
The Board were given the power to assess claims which are wholly psychological. The Board may retain claims (with the consent of both parties) for up to two more years in addition to the the standard nine months maximum months, where a medical report confirms that a long-term prognosis will not be available within 9 months.
Assessments which are accepted by respondents, but declined by claimants are treated as of an offer of tender payment. If the court’s award is not greater than the PIRB assessment, the claimant is responsible for its own costs and that of the respondent as well.