HomeCompany NewsNew Personal Injuries Guidelines will have significant impact on medical negligence cases

New Personal Injuries Guidelines will have significant impact on medical negligence cases

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Last year, we reported that the Personal Injuries Guidelines Committee (PIGC), established under the Judicial Council Act 2019, was tasked with drafting new guidelines for awards of general damages in personal injuries cases.

Earlier this month, the Judicial Council voted in favour of the newly drafted Personal Injuries Guidelines with the Minister for Justice stating they could take effect within weeks.

Not only will the new guidelines introduce new caps on damages in respect of many types of personal injury claims, but several types of injury not previously included will be covered as well.

Background: The Book of Quantum

Since 2004, the Book of Quantum has given structure and guidance to the level of damages that could be awarded or assessed in personal injury claims. The Book of Quantum was historically restricted to physical injuries that arose as a result of accidents and was used by the Personal Injuries Assessment Board in making its assessments.

However, the new guidelines adopted by the Judicial Council this month have made significant changes to the system regulating personal injuries awards in Ireland beyond the old Book of Quantum. The new Personal Injuries Guidelines will now be used in all claims for damages for pain and suffering, including claims arising out of medical negligence which were not covered by the old Book of Quantum.

Additional injuries covered in the new guidelines

The new guidelines cover types of injury that previously were not considered by the old Book of Quantum and were traditionally assessed by judges. These types of injury include;

  • foreshortened life expectancy,
  • psychiatric damage,
  • chronic pain disorders,
  • ectopic pregnancies,
  • the development of epilepsy,
  • damage to the hair,
  • dermatitis and other skin conditions, and
  • damages to reproductive systems such as infertility and loss of sexual function.

The existing categories regarding injury to internal organs such as the lungs, kidneys, bowel and bladder were expanded to include circumstances where internal organs are damaged as a result of medical negligence.

A number of the new categories cover similar injuries to those suffered by patients affected by the failures in the Cervical Check screening programme and this reflects the role of the new guidelines in covering claims for injuries sustained as a result of medical negligence as well as accidents causing personal injury.

Standardisation of judgements

Judges will be required to follow the levels of damages set out in the new guidelines and if they are of the view that a particular case requires a departure from the new guidelines, they must clearly explain their reasons for doing so in their judgment. This is a departure from the old Book of Quantum which, while useful as a point of reference, did not impose any requirements on judges in their assessment of damages in the cases before them.

These guidelines will provide greater certainty for both claimants and respondents in personal injury claims, particularly in cases where guidelines were not in place before.

The certainty will likely lead to increased numbers of early settlements. The award levels set out in the new guidelines are almost universally lower than those in the old Book of Quantum and it is likely that many cases will now be commenced in the lower courts.

Concern that the new guidelines don’t go far enough

One of the rationales for revisiting the Book of Quantum was because of advice from the insurance sector to the effect that high levels of awards were responsible for high insurance premiums across the sector.

However, representatives of the insurance sector have made statements to the effect that the new award levels do not go far enough, and it remains to be seen whether the lower awards that will follow from the new guidelines will result in insurers passing the savings onto customers.

It is noteworthy that a similar approach in the UK did not result in any notable decrease in insurance premium costs.

Roll out of the new guidelines

The new guidelines have not been brought into effect as of yet and the Minister for Justice has yet to commence the legislation required to do so, however it is expected that this will take place in the near future. It is important to note that only claims lodged after the implementation of the new guidelines will be affected and that claims which are currently in the courts system will be dealt with under the old scheme.

About the author: Mark Jones, Solicitor on the Medical Negligence Team