The New Judicial Guidelines: A New Dawn or More of the Same
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On Saturday the 6th of March 2021, the Irish judiciary voted in support of guidelines prepared by the Judicial Council’s Personal Injuries Guidelines Committee.
The Judicial Council, as we know, is made up of senior members of the judiciary who have compiled personal injury guidelines and these had been put to a vote of the 166 member Judicial Council.
The Guidelines will, following amendment of existing legislation, serve to replace the Book of Quantum which was last updated in 2016
The Book of Quantum was compiled following a non-legal/non-judicial analysis, which simply collected data from thousands of closed personal injury claims in 2013 and 2014 and was more of a data collection/correlation exercise rather than an examination of values from a legal/judicial perspective, which is now the case with the new Judicial Guidelines.
What is new?
The new Guidelines do bear resemblance to The Book of Quantum in that it grades injuries relative to various ascending valuations. The Guidelines also outline factors to be considered when making an assessment.
The new Guidelines comprise of 12 categories, with new sub categorisations to include reference to psychological injuries, scarring cases, chronic pain conditions and skin conditions.
What will change?
For now, technically, very little. Whilst we are not yet clear, it looks as if the new guidelines will apply to cases not yet assessed by the Injuries Board – therefore the positive downward valuation of Personal Injury cases may not be felt for another 12 months in reality, and there is likely to be a two tier system for a period, pre Guidelines / Post Guidelines.
One would have to speculate however that, the Guidelines and their newly introduced valuations, irrespective of their effective date, will now bear heavily on the minds of litigants, legal advisors and the Judiciary.
The new judicial guidelines, as introduced, are very likely to have positive downward recalibration on the valuation of personal injury claims in this jurisdiction, most particularly at a low and mid-range level.
At the upper level in relation to serious and catastrophic injury the judicial guidelines are likely to have little effect on the conduct of personal injury cases.
On a cursory analysis one might suggest that there will be an increased instance of District Court litigation and that lower level High Court cases will be litigated at Circuit level – but this remains to be seen.
Plaintiffs who complain of soft tissue type injury for six to twelve months now attract a valuation of €500 to €3,000. This will have little impact on the future conduct of personal injury litigation in circumstances where Plaintiffs rarely complain (or admit to) injuries confined to that limited period.
It is of note that a not insignificant number of the judiciary voted against the guidelines (63). Therefore, enthusiasm for adherence to the guidelines by dissenters remains to be seen going forward.
A plaintiff’s perspective
The Judicial guidelines, as set out, are unlikely to deter Personal Injury litigants. A cynical view might suggest that the temporal brackets now introduced by the Judicial guidelines provide a roadmap for plaintiffs as to the thresholds that are to be met to qualify for various levels of damage.
Furthermore, the increased detail referenced in the guidelines relating to particular conditions and injuries may only provide a further yardstick for opportunist claimants.
To counteract the foregoing behaviour, defendants must ensure fulsome medical investigation and robust medical reporting, with defence medical advisors prepared to identify malingering plaintiffs looking to improve the temporal bracket that will be assigned to them by the Guidelines
The climate has become more challenging for plaintiff’s generally, and the Guidelines will not be a welcome development for them or their advisors. The Court of Appeal have highlighted their awareness of “widespread public discourse, debate and dispute” in relation to the extent of awards made by the Courts in Ireland. This is indicative of an already changing landscape for valuation of cases in this jurisdiction.
The guidelines address the issue of multiple injuries specifically, to avoid injuries being valued separately thus resulting in overcompensation. It is directed that the presiding trial judge will have regard for what is termed “the most significant injury” and thereafter assess any other injury and “uplift” the value to ensure just compensation.
The guidelines enunciate that the court “should have regard only to the extent to which the condition had been made worse and the duration of any increased symptomology”. This seems to serve as to what the court’s interpretation of the “eggshell skull” rule should appropriately be.
Application / Effect of the Judicial Guidelines
The Minister for Justice has said she intends that the new Personal Injuries Guidelines will come into effect as soon as possible and will apply to all cases that have not yet been assessed by PIAB. This could be subject to change.
Lobbyists for reform and drafters of the Guidelines have envisaged a system with a very regimented and uniform approach to claims with little room for manoeuvre for a presiding Judge in order to ensure that there would be consistency across the board in valuation of various personal injury matters.
The Guidelines contain a foreword that dictates that a trial judge should receive submissions from litigants as to what bracket of the Guidelines are appropriate in a particular case.
The Guidelines also indicate that the obligation on a trial judge to have regard for the Guidelines is “mandatory”. This is tempered however by indicating, that if there is a departure from the Guidelines as set out, a reasoning for same must be provided.
As the Guidelines themselves describe, the making of an award for general damages for pain and suffering is an artificial task. One must remember that an injury is in the eye of the beholder. The uniform and regimental application of the guidelines will therefore be challenging, allied to the fact that the various brackets provided for in the Guidelines are in some instances quite wide.
Whilst difficult to predict with certainty as to the impact of the Guidelines, they are likely to benefit defendants, especially in relation to cases of minor and moderate injury.
Book of Quantum v Judicial Guidelines
Whilst the below provides a comparative analysis of the New Guidelines v The Book of Quantum, we must remain cognisant of the fact that the Book of Quantum had, to a large degree, become a redundant tool for the judiciary in valuation of Personal Injury cases. That is of course against the backdrop of recent Court of Appeal decisions which have directed that the Book of Quantum is taken into consideration when valuing more straightforward cases.
The Book of Quantum provided no guidance in respect of psychological injury. Section 4 of the Judicial Guidelines now sets out a detailed analysis of what type of awards that varying degrees of psychiatric injury would attract.
It is split in two parts, with a dedicated subcategory for PTSD.
Section 4A references severe psychiatric damage with an upward figure of €170,000.
Part 4D relates to minor psychiatric damage and has a band of €500 to €15,000. This is noteworthy from a Defendant’s perspective in circumstances where it is often the experience that minor soft tissue injury can be allied to minor psychiatric overlay, enhancing the value of lower level claims.
Category 7 – Orthopaedic Injury
Section 7 of the Personal Injuries Guidelines have regard to orthopaedic injuries. They are subcategorised like the Book of Quantum.
The upper limits are considered at a level of €150,000 to €300,000 and these appear to relate to life changing disability of considerable severity. This against a maximum valuation of €78,000 in the Book of Quantum which represents a significant expansion of valuation.
Spinal fusion surgery and severe damage to the soft tissues which are valued at a level of €70,000 to €100,000, traditionally (albeit not provided for in the Book of Quantum) might be regarded as a slight contraction in valuation.
Moderate Neck Injuries
Where a claimant will be regarded to have had symptoms for a period of less than five years, this bracket is in the region of €12,000 to €23,000. Pre judicial guidelines, if a Plaintiff had an uncertain prognosis or indeed quite a protracted recovery with an injury of this type, cases traditionally could be regarded as having a valuation in the upper echelons of the Circuit Court – the Book of Quantum valued such an injury at a maximum of €30,000.
Minor Neck Injuries
A Minor Neck Injury, which is regarded as substantially recovered under the Book of Quantum, would have an entitlement for a Claimant of up to €15,700.
Whilst some of the headlines in relation to the new judicial guidelines will have regard to minor neck injuries now having a much lower valuation of €500 to €3,000, in reality very little litigation takes place in this category.
What is more noteworthy however, from a Defendant perspective is Judicial guidelines regarding a minor neck injury where substantial recovery has taken place within one to two years will now have a maximum value of €12,000.This type of injury, where complaints pertain for 12-18 months post-accident, account for a significant amount of litigation arising out of minor road traffic incidents and slips / falls etc. There is scope for significant saving in this space for defendants.
The most significant back injury in the Book of Quantum was regarded as having a maximum valuation of €140,000. The Judicial Guidelines introduce a bracket for this similar injury of €150 – €300,000.
Similar to neck injuries as outlined above, a significant proportion of litigation arising out of minor incidents result in mild to moderate conditions.
Moderate back injury, to include a compression/crush fracture where there is regard to a possible spinal fusion, is now valued at a maximum level of €55,000. The Book of Quantum had an allowance of up to €93,000 for a similar injury.
The Personal Injury Guidelines have a valuation for minor back injuries where substantial recovery without surgery takes place within two to five years of €12,000 to €20,000. This, to my mind, again represents a positive from a Defendant/Insurer perspective in that the upper limit is regarded as being €20,000.
This amendment is likely to see a significant downward pressure of potential awards in the future for injuries of this nature.
In relation to shoulder injuries, again the main points of note rest in the moderate/minor categories where it is regarded a shoulder injury with intrusive permanent symptoms has an upper limit now of €35,000.
This is a significant downward valuation where similar type injuries under the old Book of Quantum could attract an award in this category in the upper limit of double what is now allowed in the Personal Injury Guidelines.
At the lower level, where a Plaintiff has had recovery within a period of two years the upper limitis €12,000. This against a backdrop of the Book of Quantum where a minor soft tissue injury to a shoulder could achieve anywhere up to €33,500.
Upper limb Injuries
The Book of Quantum assessed a moderately severe elbow injury up to €60,000, whereas the outer limit under the new Judicial Guidelines are at a level of €40,000.
A minor sprain of the elbow would have achieved up to €10,000 in the Book of Quantum while it seems that the band has been expanded in this regard to €15,000 under the Judicial Guidelines.
A minimally displaced wrist fracture under the old Book of Quantum would have received an award of up to €28,000. The new guidelines indicate a band of between €10,000 and €18,000.
In terms of amputation type injuries, the Book of Quantum assessed an amputation of the index finger up to €56,000, but this is more than halved now providing for a maximum of €25,000.
Lower Limb Injuries
At an upper level there is now guidance in relation to leg or foot amputations ,which was not afforded by the Book of Quantum, where a loss of lower limb has an upper limit of €160,000.
A moderate leg injury is described as a complicated or multiple fracture or severe crush injuries generally to a single limb and that bracket is €50,000 to €75,000.
Experience of dealing with Plaintiffs with multiple or complicated fractures or crush injures might have traditionally fared better than the above bracket now suggests in the new guidelines.
Fracture to the Tibia or Fibula with complete recovery is now being valued in a band of €7,500 to €15,000. This has a significant downward valuation in comparison with the Book of Quantum which would have valued a minor injury to the Tibia or Fibula of having a valuation of up to €50,000.
Category 8 of the new judicial guidelines deal with various pain disorders to include fibromyalgia, chronic pain syndrome etc. There is a value band of between €35,000 and €95,000.
Category 9 of the judicial rules now introduce a valuation of scarring.
The bands start at minor scaring at a level of €500 up to the most severe scaring at €200,000. This is of course an attempt to bring some level of certainty and provide guidance for the judiciary. Scaring is essentially a subjective analysis and it appears a large degree of Judicial discretion is retained in this particular category.
There is also a section having regard to burns, damage to hair and various skin conditions which previously the Book of Quantum had no regard for. The damage to hair, contained in Section 11 of the Judicial Guidelines, seems to have particular regard to hair treatments negligently carried out with an upper limit of €22,000.
A very crude calculation of the valuations contained in the Judicial Guidelines would suggest overall reductions of close to 60% of those contained in the Book of Quantum. Based on that analysis alone, the Guidelines are certainly a welcome departure for defendants and their insurers.