Impact of the Personal Injuries Commission

The Personal Injuries Commission, chaired by Mr Justice Nicholas Kearns, former President of the High Court, published its second and final report in July 2018. The Commission’s report stated that the public and policy holders were concerned with regular increases in premia. Insurers are concerned as to the perceived high level of damages being awarded to plaintiffs, both by the courts and in settlements, which in their own way acted as an incentive to plaintiffs in and outside this jurisdiction to pursue claims for personal injury inn Ireland. The Commission estimated that damages for soft tissue injuries in this jurisdiction are 4.4 times higher than that awarded in England and Wales.

Insurers are also concerned that the high level of damages was an incentive to some plaintiffs who would pursue exaggerated and fraudulent personal injury claims, given the prospect of a high return with little or no risk of them being sanctioned for their fraudulent behaviour.

The Commission acknowledged the need to ensure that all genuinely injured plaintiffs receive adequate compensation and they recognised the negative impact of high insurance premia on consumers.

The Commission believes that the appropriate rebalancing and recalibration of Irish awards, which in turn should justify lower premia, which will meet the concerns raised by consumers and business owners, without restricting recourse for genuine Plaintiffs to pursue a claim for compensation. This “re-calibration” has over the last number of months been seen in both the High and Circuit Court, especially in cases involving soft tissue injuries. In a recent case before Mr Justice Twomey relating to the assessment of damages of a soft tissue injury, he commented when awarding €8,000 in compensation, that the amount was in consideration of the downwards recalibration of damages in certain personal injury actions of between 45-50 %.

The Commission made 10 recommendations, which included the following;

1. That the Judicial Council compile guidelines for appropriate general damages for various types of personal injury
2. In a case where an Insurer deals directly with the plaintiff, no offer of settlement should be made unless a medical report is obtained
3. The establishment of an Irish Garda Fraud Investigation Bureau along the lines of the Insurance Fraud Enforcement Department in the UK (IFED). This resource would be established to investigate and detect and assist the prosecution of fraudulent activities, which would include individual groups pursuing fraudulent or exaggerated personal injury claims. This resource will allow An Garda Siochana (the Irish Police force) to recruit the personnel and provide the tools to pursue and prosecute individuals or groups involved in fraudulent activity.

The recommendations contained in the Commission’s report have been generally well received, although there is now a growing frustration that there has been no change in the status quo.

As well as the Commission’s recommendations, other matters for consideration could include the following;

1. Narrowing the discretion contained in Section 26 of the Civil Liabilities and Courts Act 2004, whereby a plaintiffs’ claim is automatically dismissed if they are found to have given false or misleading evidence
2. Compulsory discovery of medical records (categories of disclosure to be agreed)
3. Compulsory registration of all claims on Insurance link (extending to UK Insurers, ensuring correct detail is added and inclusion of defamation claims)

A consistent and clear approach to the valuation of personal injury awards needs to be adopted, which will assist managing plaintiffs’ expectations when pursuing personal injury claims and to ensure that policy holders and other stakeholders have a better understanding of liability exposure, when being asked to pay their premiums.

Equally as important, the message needs to be clear: that fraudulent and exaggerated claims will not succeed and will be punished by orders for costs against unsuccessful plaintiffs and a well-equipped process that allows the conviction and sentencing of proven fraudulent plaintiffs. Deterring fraudulent claims is preferable than fighting them in Court.

The Commission’s first report was published in November 2017, and was a review of the provision of medical expertise provided by medical experts in consideration of other jurisdictions and their practices. That report recommended a template for assessing soft tissue injuries along with best practice guidelines for medical experts. 

For further information please contact your usual AMOSS contact.