More changes to Personal Injuries in Ireland

Personal injuries in Ireland; more changes and details to be aware of

It’s no secret that Personal Injuries awards and the cost of insurance have been hot topics in the news for the last few years. Every few weeks it seems that there’s a new batch of cases that feature on the front pages of print media detailing large pay outs for watery claims. Political appetite to deal with the fallout from these awards and the potential creation of a ‘compensation culture’, as identified by news media, led to the creation of the Personal Injuries Commission.

The Personal Injuries Commission (PIC) was set up in early 2017 and it is chaired by Mr Justice Nicholas Kearns, former president of the High Court. It was established with the aim of introducing measures to help reduce the costs of insurance and the associated costs of personal injury litigation as awards in personal injury actions play a significant role in dictating insurance companies pricing models.

The PIC has recommended that a Judicial Council be established by the Minister for Justice and Equality to set out guidelines for the levels of awards to be granted in personal injuries cases and that this should be done by taking account of recent results from the Court of Appeal. Benchmarking and the Whiplash Associated Disorder Scale (WAD) established by the Quebec Task Force should also be used to guide policy.

Tighter rules

More defined rules surrounding the application process are to be welcomed by all sides as any confusion around an aspect of the process, or a watery understanding of what a particular section actually means, 9 times out of 10 results in delays and additional costs as more work, correspondence, or backtracking must be engaged in. All that work subsequently has to be billed and paid for, resulting in higher costs.

Section 13(2) of the 2018 Central Bank Act 2018, amends s. 8(1) of the 2004 Civil Liability Courts Act and reduces the notification period for sending a letter before action to one month. It remains to be seen how the Courts will interpret these new requirements but it’s worth noting two changes to the wording of the new amendments;

1. The words “or as soon as practicable thereafter” were removed from the old legislation – meaning there is less scope for interpretation about when that notification should occur;

2. The word “may” has been replaced with the word “shall” – the word ‘may’ being permissive as opposed to the mandatory nature of the word ‘shall’.

Section 13(3) of the 2018 Act inserts the new section 14(4)(a) into the 2004 Act in relation to the Court drawing inferences where one side fails to swear or file affidavits of verification, and costs orders can be imposed for non-compliance in this regard.

The Personal Injuries Assessment Board Act 2019 also makes a change to say that an application to PIAB will only be recognised as ‘complete’ once PIAB have received the €45 application fee and the requisite medical report. Partial or incomplete applications will not be replied to by PIAB. Previously, a response from PIAB would involve being assigned a reference number and thus being logged into the system. This is no longer the case.

The Book of Quantum, the ‘bible’ as regards the level of damages a particular injury may attract, will have to be reviewed at least once every three years. This is to be welcomed also. Out of date guidelines are of no assistance to anyone.

Full compliance with the PIAB application or assessment process is now buttressed by section 9 of the 2019 Act which says that the court can make costs orders against any party who does not co-operate with any of PIAB’s processes. This is another common sense amendment that will reduce the time it takes for a claim to pass through PIAB.

The Courts may well seek to make more costs differential orders where a case has been brought in one court but may have been more appropriately brought within another Courts jurisdiction. For example, bringing a case in the High Court where it should have been brought in the Circuit Court could lead to you paying the costs difference of running the case in the higher court to the other side. Again, this forces people to be more reasonable and prudent in their selection of jurisdiction.

To close, we will have to wait and see how these various rule changes will be interpreted and implemented going forward but there is no doubt that there has been a significant change in how personal injury cases will be dealt with in Ireland from here on in.

Be aware and cognisant of these changes or face the risks outlined above.

Daniel O'Connell

19 August 2019

doc@reb.ie