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LRC to examine constitutionality of caps on personal-injury damages
Professor Donncha O'Connell of LRC Pic: RollingNews.ie

05 Jun 2019 / legislation Print

LRC to probe validity of personal-injury payout cap

There are 15 projects in the Law Reform Commission’s latest programme, to be launched this evening by Attorney General, Séamus Woulfe.

One project will examine whether caps should be placed on personal-injury damages.

The commission’s statutory role under the Law Reform Commission Act 1975 is to review the law and to make proposals for law reform.

This role is carried out primarily under a programme of law reform. The commission also works on specific matters referred to it by the Attorney General under the 1975 act.

Public consultation

The LRC’s fifth programme was prepared following extensive public consultation throughout 2017 and 2018.

The commission received over 70 written submissions from individuals, NGOs, representative groups and Government departments, as well as many other proposals from those who attended public consultation meetings held in Cork, Dublin, Dundalk, Galway and Limerick.  

In total, the commission received and considered over 150 proposals for consideration, which it whittled down to 15.

The programme for reform is grouped under six headings:

Courts, public law and the digital era

1)    Reform of non-court adjudicative bodies and appeals to courts,

2)    A regulatory framework for adult safeguarding,

3)    Privacy and technology in the digital era.

Criminal law and civil procedure

4)    Structured sentencing,

5)    Review and consolidation of the law on sexual offences,

6)    Perjury,

7)    Compensating victims of crime, 

8)    Regulation of detention in Garda custody.

Civil liability and civil procedure

9)  Caps on damages in personal-injuries litigation,

10) Protective costs orders,

11) Liability of hotels and related establishments,

12) Liability of unincorporated associations.

Evidence

13) Aspects of the law of evidence, bad character evidence, privilege.

Family law

14) Aspects of family law, proper provision on divorce,

Land law

15) Aspects of land and conveyancing law, adverse possession, prescriptive easements.

Adult safeguarding follows Government agreement that there was a need for an appropriate statutory framework for the safeguarding of vulnerable or at-risk adults.

The commission, in a 2006 report, recommended the replacement of the adult wardship system with legislation on adult capacity based on a functional test of capacity, largely reflected in the Assisted Decision-Making (Capacity) Act 2015   (which has not yet been fully commenced). 

This project will consider a range of matters, including co-ordination of any new proposed powers of existing or new bodies with other regulatory and oversight bodies, such as the Health Information and Quality Authority on health matters, the Central Bank on financial matters, and the Department of Employment Affairs and Social Protection on social welfare matters.

It will also consider what regulatory powers may be needed in this area, including those considered by the commission in its Fourth Programme project on Regulatory Powers and Corporate Offences, on which the commission published its report in 2018.

Digital era and the law

The ‘privacy and technology in the digital era’ project will consider aspects of the impact of the digital era on the law.

The commission will give priority to examining how technology in the digital era has affected traditional views of privacy. In particular, it will explore to what extent the commission’s previous work in this area in the late 1990s, concerning privacy and surveillance, needs to be reconsidered.

The project may also examine a discrete area concerning the future impact of interconnected digital devices – the ‘Internet of Things’.

For example, the development of autonomous vehicles and vessels is likely to have significant effects on the interaction between road traffic law or maritime regulations on the one hand, and product liability law on the other. Such a project could therefore identify reforms that would be required.

The review and consolidation of the law on sexual offences follows a large number of submissions on the need to review specific aspects of sexual offences law, and for the consolidation of the law. 

Attrition rate

The project will, therefore, examine the case for reform of the definition of rape, sexual history evidence, the high attrition rate in sexual offences cases, and whether procedural and other reforms could have an impact on this, and separate legal representation for complainants.

The Criminal Law (Sexual Offences) Act 2017 has provided for significant reform, but did not involve consolidation of the law – and some sexual offences on the statute book date back to the 19th century. 

The regulation of detention in Garda custody examines the potential for consolidation and reform of legislation, principally the Criminal Justice Act 1984.

This work will complement the O’Toole Commission Report, and it will have regard to the relevant provisions in the Constitution, EU law and the European Convention on Human Rights.

Statutory caps

Project nine will consider whether it would be constitutionally permissible and, if so, whether it would be desirable to legislate, for statutory caps on general damages (damages for pain and suffering) in personal-injury cases.

The Costs of Insurance Working Group and the Personal Injuries Commission recommended that the commission should consider including this project in the Fifth Programme. 

The courts have, in a number of cases in recent years, laid down what have been described as caps or tariffs on general damages, which take account of the injuries suffered by a plaintiff and, in some instances, the level of special damages awarded (for example, for loss of earnings and medical care costs).

These caps or tariffs have been adjusted by the courts over the years, taking account of general economic conditions and medical-costs inflation. The project will also take account of the proposal that the Judicial Council will include a committee that could develop further guidance in this area.

The family law project will examine whether there is proper provision on divorce recognition.

Proper provision

Article 41 of the Constitution and the Family Law (Divorce) Act 1996 provides that, in a divorce case, a court must determine whether proper provision has been made for the spouses involved.

Considerable case law has arisen on this issue and, while the 1996 act provides for certain matters to be taken into account, the determination of “proper provision” remains primarily a matter for judicial discretion.

Among the issues that have given rise to debate in the case law is the extent to which ongoing payments or lump-sum awards may be made.

The project will consider to what extent any further guidance may be provided in order to ensure a consistency in the approach taken to the exercise of this judicial discretion, in particular to assist spouses to reach settlements and resolve disputes more efficiently and at lower financial cost. 

Concerns

Several submissions to the commission also raised concerns about the uncertainty surrounding the basis for the recognition of foreign divorces.

In H v H in 2015, the Supreme Court held that the current test was based on whether one of the spouses was domiciled in the foreign jurisdiction, as opposed to one of the spouses being habitually resident in that jurisdiction.

The determination of ‘domicile’ includes an assessment of the intention of the person to remain in the foreign jurisdiction, which has proved complex to determine in some instances, whereas a test of habitual residence can be determined by factual circumstances alone, which may be less complex.

Test

The Supreme Court considered that the test could be changed by legislation, and this project will, therefore, consider whether the current test should be reformed.

The commission is completing work on the remaining projects in its Fourth Programme of Law Reform (including a project on the methods for implementing international obligations in Ireland, and a project on the consolidation and online publication of legislation), as well as two projects arising from requests from the Attorney General (on privilege for court reports under the Defamation Act 2009, and on knowledge and belief as to consent in rape law). 

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