Capping personal injury damages 'constitutional', law body concludes

The Law Reform Commission said that new provisions capping personal injury claims are "likely to resist" constitutional challenges. File Picture: iStock

Recent laws introduced to deal with the contentious issue of court awards for personal injuries do not breach the Constitution, the State’s legal experts have concluded.

The Law Reform Commission said that provisions in the Judicial Council Act 2019, which would allow for caps to be placed on general damages in personal injury cases, are “likely to resist” Constitutional challenges.

The commission said the act “should now be given time to be implemented”.

The report, Capping Damages in Personal Injuries Actions, was treated as a “priority project” by the commission, and followed ongoing public debate on the cost of motor insurance, insurance premiums, and the difficulty that certain businesses had in getting any insurance cover.

The commission said the recent reports of the Cost of Insurance Working Group and of the Personal Injuries Commission recommended that the LRC should examine the provision of a statutory regime placing a cap or tariff on some or all categories of general damages in personal injuries cases.

General damages cover non-financial loss, including the physical and mental pain suffered by the injured person. The commission makes no recommendation on special damages, which relate to actual financial loss, including loss of wages and medical expenses.

It said the courts, most recently the Supreme Court in the case of terminally ill woman Ruth Morrissey, had ruled that special damages in a personal injuries case must involve an award of full, 100% compensation.

The commission examined four models, including one laid out under the 2019 Act.

It said that under this act, the Personal Injuries Guidelines Committee (PIGC) will now prepare guidelines which will replace the current Book of Quantum.

The committee was set up last April and will prepare draft guidelines later this year.

When introduced, courts will be required to have regard to the guidelines and, as a result of the 2019 act, there will be an obligation on the court to state the reasons for any departure from the guidelines.

There is currently no obligation on a court to explain any departure from the Book of Quantum.

The commission said that a number of legal experts consulted for their report favoured this model, which the commission agreed with.

It said that the 2019 act and the establishment of the PIGC were “significant expressions” of the will of the Oireachtas and the Government, and that it was “entirely appropriate and desirable” to give this “some time to be applied in practice”.