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The Law Reform Commission (LRC) has released a report advising that, in principle, legislation introducing a cap on general damages awarded in personal injuries claims would be permissible under the Constitution.
In personal injuries claims, general damages are awards for pain and suffering arising out of an injury. These damages are distinct from special damages, which cover out-of-pocket expenses such as medical expenses and loss of earnings and will not be affected by any proposed cap.
The Personal Injuries Guidelines Committee (PIGC) was established under the Judicial Council Act 2019 and is tasked with drafting new guidelines for awards of general damages in personal injuries cases. These guidelines will eventually replace the current Book of Quantum, the current guidelines produced by the Personal Injuries Assessment Board, which judges currently use as a guide when deciding on general damages. The PIGC guidelines are expected to be released on the 28th October 2020.
The Law Reform Commission assessed four potential models of capping damages through legislation and recommended that the approach most likely to withstand any constitutional challenge is the proposal for legislation requiring the courts to have regard to any guidelines on levels of damages produced by the PIGC when assessing general damages. The court would also be required to state the reasons for any departure from the new guidelines, which they are not required to do in respect of the current Book of Quantum.
A second option, which would provide a ceiling on general damages but allow a court to exceed it in exceptional circumstances where the court considers it to be in the interests of justice to do so, would also be likely to satisfy Constitutional requirements.
Under both of these options, the assessment and award of damages, while guided by legislation, remains ultimately a judicial function and is unlikely to breach the separation of powers set down in the Constitution.
The current limit on general damages set by the Supreme Court in Ruth Morrissey -v- Health Service Executive is €500,000 in respect of catastrophic injuries. The current approach set by the Court of Appeal in cases of non-catastrophic injury is a 3-point scale ensuring that awards of general damages are proportionate to the injuries suffered – whether minor, moderate, or severe.
About the author: Mark Jones, Solicitor on the Medical Negligence Team