Michael D'Arcy (Wexford, Fine Gael) | Oireachtas source

When Committee Stage of the Bill was taken last April, there was a considerable volume of amendments to be discussed related to sentencing matters. On this occasion, there is also a considerable volume of amendments to be discussed, but this time related to personal injuries matters. I propose to take the approach taken on the last occasion, that is, explaining the purpose behind the various amendments I am proposing and associated related amendments in a way which I hope will facilitate an informed and structured debate on what is a very important matter both for this House and society at large.

By way of background, Senators will be aware that the proposal to assign a role to the Judicial Council in compiling guidelines on appropriate general damages for various types of personal injury first arose in July 2018 when the second and final report of the Personal Injuries Commission was published. The Government took the view that there was considerable merit in the recommendation, not least because its implementation, in promoting consistency in the level of damages awarded by the courts, should have a calming effect on the insurance market in general.

The first set of amendments I am proposing – amendments Nos. 1, 5, 6, 14, 15 and 20 – will effect a range of technical changes to the Bill to accommodate the personal injuries guidelines committee in its structure. Consequent on the establishment of the committee, it is necessary to have a definition of personal injury in the Bill. Amendment No. 6 deals with this issue. Also, because of the terminology being used, a small change is needed in the language used in section 17 which deals with the role of the judicial studies committee. Amendment No. 20is relevant in that regard.

Amendments Nos. 2, 4, 21, 39, 42 and 43 are connected in various ways with the functions the new committee will have. A key amendment is amendment No. 21. Following the model related to both the sentencing information and guidelines committee and the judicial conduct committee, provision is made for the committee to prepare draft personal injuries guidelines and submit them for review by the board of the Judicial Council. The amendment specifies that the first draft of the guidelines must be submitted to the board no later than 12 months after the establishment of the committee. The committee will be required to review the guidelines on a three year basis. If the review indicates that amendments are required, the committee will be obliged to prepare a draft of such amendments for submission to the board.

To assist it in carrying out its functions, the committee will have broad powers to obtain any information it might need. It may also consult appropriate persons and bodies, including the Personal Injuries Assessment Board, and conduct research into the level of damages awarded by the courts in the State and elsewhere.

Under the amendment, the committee is also mandated to prepare material for inclusion in the annual report of the Judicial Council on its activities.

The amendment is linked with amendment No. 42 which seeks to amend the Personal Injuries Assessment Board Act 2003 so as to remove from the board the responsibility it currently has for preparing the book of quantum and revising it at least once every three years.

Amendments Nos. 4 and 39 are central to the reforms I am proposing. Specifically, amendment No. 39 provides that the guidelines are to contain general guidelines on the level of damages that may be awarded or assessed for personal injuries. They may also offer guidance on matters such as the range of damages to be considered for a particular injury or the impact multiple injuries may have on the level of damages.

The amendment specifies various factors which are to be taken into account by the committee in preparing drafts of such guidelines. One such factor relates not just to the level of damages awarded by the courts in the State but also to the damages awarded by courts in places outside the State.

Much attention has been focused on the finding made in the second and final report of the Personal Injuries Commission that soft tissue injury claim costs in this jurisdiction are a multiple or over four times those which prevail in England and Wales. This element of the amendment will provide the committee with the tools it needs to take relevant international comparative costs into account when drawing up draft guidelines.

Another important factor concerns the principles set down by the courts in this jurisdiction. We have become very familiar with the idea that modest injuries should attract moderate damages. At the heart of this idea is an appreciation that damages for pain and suffering must be reasonable, having regard to the injuries sustained, and must be proportionate within the scheme of awards made to individuals for injuries which are of significantly greater or lesser import. In addition, the courts have recognised that damages should be objectively reasonable in the light of the common good and social conditions. I am confident that guidelines which reflect these principles will inevitably bring about a much needed recalibration of the existing book of quantum. A final factor to which I will briefly allude concerns the need to have regard to guidelines relating to the classification of personal injuries. While not specifically referenced, this would allow the committee to take account of the highly reputable whiplash associated disorder scale, which was developed by the Quebec task force and helps to determine the type and extent of medical care likely to be needed to treat an injury effectively and to resolve accompanying pain and discomfort.

The final element in this set of amendments is contained in amendment No. 43, which relates to section 22 of the Civil Liability and Courts Act 2004. One element of the amendment, which is purely technical, replaces references to the book of quantum, to which the courts shall have regard, with references to the personal injuries guidelines. The other element of the amendment, which is more significant, requires a court which departs from the guidelines to state the reasons for such departure in giving its decision. This amendment will allow for greater assessment of the extent to which the guidelines are being followed and will also be of assistance to the appellate courts in determining whether the reasons given for the departure are justified.

Amendments Nos. 7 to 13, inclusive, relate to the role of the council and the board of the council in the draft personal injuries guidelines. To ensure consistency with other provisions in the Bill, these amendments mirror the arrangements envisaged for the judicial conduct committee and the sentencing guidelines and information committee. As a result of these amendments, it will be a clear function of the council to promote among judges an understanding of the principles governing the assessment of damages for personal injuries. Express clarification is also provided that the council can enter into contracts or engage consultants for the purposes of enabling the various committees to carry out their functions. This is especially important in the case of the personal injuries guidelines committee.

Amendments Nos. 22 to 25, inclusive, are concerned with issues around membership of the committee and the procedures of the committee. Amendment No. 22 provides that the committee will consist of seven judges, with at least one judge drawn from each of the jurisdictions. Amendment No. 23 specifies that the standard membership term for the committee shall be four years, to be renewable once. The filling of casual vacancies is dealt with in amendment No. 24. Matters such as the procedures for meetings, the first of which is to be held not later than one month after the date of the committee's establishment, and the quorum for meetings, which is set at three, are addressed in amendment No. 25. I hope Senators will agree that the amendments I have outlined are comprehensive in nature. I look forward to their comments on them.