The Law Society notes reports in today’s media of correspondence between the Minister for Justice, Charlie Flanagan and the Chief Justice, Frank Clarke.
The Law Society welcomed the findings of the Personal Injuries Commission (PIC) that the proposed Judicial Council be tasked with drawing up appropriate guidelines for awards in personal injury cases. This remains the appropriate way for any review of the level of awards in this jurisdiction to be carried out.
It is disappointing to note that the Judicial Council has made no progress. However, the failure to progress this important legislation should not result in a knee-jerk reaction which could have unintended and unforeseen negative consequences.
It is reported that an interim ad hoc committee made up of judges, Courts Service and Department of Justice staff is proposed by the Minister and that it would preside over the recalibration of current guidelines in the Book of Quantum. It is also reported that the judiciary is being urged to lower such damages to bring them closer into line with those in the UK.
Such proposals, if correct, should be approached with extreme caution. It is important to preserve the separation of powers; in particular, given that the State is a defendant in many compensation claims, it cannot be impartial when assessing the appropriate level of damages.
The constitutionality of such a practice will also come into view if damages in a Book of Quantum today are much higher than those, say, in six months, as claimants, who reject a PIAB award and who relied on the original Book, will inevitably receive less damages than they had refused and will fall foul of the existing statutory rules which do not allow a costs awards in those circumstances.
Injury victims are entitled to be treated fairly by the Courts and the Book of Quantum cannot create fundamental injustice. Many medical practitioners hold the view that in some cases soft injuries can be more difficult to treat than say a fracture. In addition, different people are affected in so many diverse ways even by injuries that are not chronic. It simply is not possible to generalise about the effect of soft issue injuries.
There is absolutely no evidence that reducing damages will result in lower premiums. Indeed, insurance premiums in the UK, where damages have always been much lower, have been and consistently are higher on average than in this country. The effect of reducing damages will merely be to take from the pockets of injured victims of negligence and place into the pockets of an increasingly profitable insurance industry.
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