New plan to cap damages for pain and suffering in personal injury cases
The government has been told it can limit personal injury payouts without resorting to a referendum.
In the opinion of the Legal Reform Commission, a regulation limiting the amount of awards for general harm – amounts for pain and suffering – would be permissible under the constitution.
In a report released today, the advisory panel signaled that the government could use laws to intervene at the awards level that many sectors believe contribute to high insurance costs.
However, she warned against the introduction of mandatory caps, saying more flexible “putative” caps could better weather constitutional challenges.
In the government program, Fianna Fáil, Fine Gael and the Greens committed themselves to examining the need for a constitutional amendment so that the Oireachtas can set guidelines for the award.
However, the results of the report reduce the likelihood of a referendum on the matter.
A particular concern of attorneys who opposed legal caps was the impact they would have on the separation of powers and the constitutional requirement that the administration of justice be conducted by courts.
However, the Commission’s report on limiting harm in the event of personal injury stated that “the legislation limiting the award of general harm in the event of personal injury could in principle be constitutionally permissible”.
It is said that how a particular proposal is worded would affect how likely or unlikely it is to be put down.
The report is released today by Justice Mary Laffoy, President of the Legal Reform Commission, and Commissioner Raymond Byrne.
Two possible models for limiting awards are identified that the Commission believes will meet constitutional challenges.
It would be crucial that both judges could raise the prices at their own discretion, but they would have to provide an explanation that the upper limit was not observed.
There is currently no obligation for judges to declare deviations from the Book of Quantum, the general guide currently used to calculate personal injury premiums.
The first possible system set by the Commission is to set a cap or cap on general harm, with all minor injury awards tied to the cap.
This model would also provide for a “judicial inquiry”, in which the judges could exercise discretion according to defined criteria in order to vary the award.
The second model, which the Commission believes would stand up to a constitutional challenge, is already in the works.
Among them, a judges committee, the Personal Injury Policy Committee, will develop new guidelines under the Judicial Council Act 2019.
These would replace the book of quanta and could differ from the current level of court rulings.
The Commission said it was entirely appropriate and desirable that the guidelines, once published, be given some time to be used in practice.
The Commission’s findings came after conducting a “quick” review of the problem after both the Insurance Costs Working Group and the Personal Injury Committee recommended participating.
The report rejected an option where an upper limit would have been set by primary law and set in a manner similar to most criminal cases, where sentences are imposed using a proportionality test on a scale of one to zero.
It noted that this option would face some risk of constitutional challenge as the cap would be mandatory.
A second option rejected by the Commission was one where the details of the cap would be determined by a government minister or other regulator.
It concluded that this, too, would be prone to challenge.
The report states that the government and the Oireachtas are the final forums to consider what political or legislative initiatives should be taken.