The High Court restates the position that Solicitors can instruct non-treating Medical Experts in Injury Actions.

Healy v HSE is the second Irish High Court judgement in a matter of days that focussed on the issue of Solicitors instructing non-treating Medical Experts in Personal Injury actions. The Court restated the position that it was entirely appropriate. In doing so the Court in fact considered the rules elsewhere, where often Medical Evidence from treating experts can be viewed as potentially conflicted.

“Solicitors and counsel have training, experience and skills which derive from established duties and principles. The legal profession is considered by the Court to be a noble profession; it assists in upholding and protecting the law. Law preserves the moral sanctity which binds society. In short, no question was asked or arose during the assessment hearing about the propriety of the referral of the plaintiff by each firm of solicitors to some of the medical practitioners, followed by the delivery of medico – legal reports.”

Conflict between the wording of a Motor Insurers certificate and schedule. How is it resolved?

The High Court in London recently heard a case where there was such a conflict involving an Equity Red Star Trade Policy. The policy was issued to a vehicle transport company. The schedule stipulated that the policy covered a limited number of vehicles being driven on Trade Plates. The class of use on the schedule was described as “Business use of the Insured”.

The Certificate differed, and stated, “Any private car or commercial vehicle the property of the policyholder or in their custody or control including any motor vehicle bearing a trade plate number owned by the policyholder.” The class of use as stated on the certificate was “Use for social, domestic and pleasure purposes and for the business of the policyholder.”

In September 2017 an employee of the Insured had collected a vehicle that was due to be delivered to a client a few days later. On the second day the employee, driving the vehicle, without trade plates, and for what appeared to be social and domestic purposes, was involved in a collision in which the third-party vehicle driver suffered serious injury.

A dispute arose between Allianz (ordinarily the Insurers of the transported car) and ERS, as to whether the ERS policy applied.

Beltrami J, addressing the apparent conflict in the ERS Policy found that the ERS policy did not apply.

“I find that the conflict should be resolved in ERS’s favour. Taking the ERS Policy as a whole, the operative document which defined the insured vehicles and the cover which applied was the Schedule. That Schedule was unambiguous as to those matters. The Certificate served a different purpose and should, in the event of inconsistency, have to yield to the Schedule on such matters.”

The Judgement can be read here.

“Solicitor cannot be faulted for engaging a medical expert witness directly in an appropriate Case”

A recent High Court judgement has given helpful Guidance for Plaintiff and Defence Solicitors on direct instruction of Expert Medical Witnesses in Personal Injury Actions.

For a measured and appropriate discussion on the selection and use of expert medical witnesses in Personal Injury Cases, the recent Judgement of Mr Justice Ferriter is worth a read. It’s analysis of recent case law and helpful reference to the Law Society of Ireland’s Protocol for direct referral to Consultants by Solicitors is worth bookmarking.

Read more here.

The Importance of a rigorous Method Statement by a Project Supervisor.

The Role of the Project Supervisor on a Construction Site is examined in the Judgement of Mr Justice Sanfey in a recent decision. He accepted the Defendant’s contention that that a contractor responsible for a construction site is not under an absolute duty to ensure that the site is safe and without risk of injury. That Article 30 of the 2013 Regulations makes it clear that this duty applies “so far as is reasonably practicable”.

In this case the Court held that the safety statement was deficient. Primary liability rested with the Defendant. The Plaintiff was found to be guilty of Contributory negligence for adopting a method that was inherently unsafe.

Read more here.

Lacey Solicitors announces Ruaidhrí Austin as Partner and further promotions within the firm

Lacey Solicitors has elevated Ruaidhrí Austin to Partner.

Jenna Curran has been appointed Senior Associate Solicitor and Aisling Creegan has joined the firm as Assistant Solicitor upon her recent successful qualification.

Commenting on the appointments, Senior Partner, Terry Lacey said,

“I am delighted that Ruaidhrí, Jenna and Aisling are advancing their careers at Lacey Solicitors. We are blessed with very talented individuals. Ruaidhrí is an exceptionally talented lawyer with an unbridled enthusiasm for the delivery of our defence insurance service to the clients we are so very privileged to act for. His addition to the partnership team is most welcome.”

“His expertise, experience, talent and client focused enthusiasm shall all serve to drive Lacey Solicitors to greater heights of success into the future.”

“Jenna, Ruaidhrí and Aisling were all trained here at Lacey Solicitors. We are very proud of our commitment to training solicitors and giving them a platform for their careers here at Lacey Solicitors. We congratulate Aisling and welcome her as the latest lawyer to join our talented team.”

Of Jenna Curran’s appointment he said,

“Jenna is a brilliantly talented lawyer. She has contributed immensely to the development of the firm since she joined it, shortly after it was formed. Her elevation is reward for her commitment and her exceptional professional service.”

On his appointment as Partner, Ruaidhrí stated,

“I am delighted that Messrs Terry Lacey and Damian McGeady have given me their full vote of confidence by having me join the partnership. I’m grateful to the talented team within the firm. I look forward to continuing to represent Lacey Solicitors and maintaining our reputation as an all-island firm providing a comprehensive legal service to insurers across Ireland.”

FCA COVID-19 business interruption test case verdict revealed

The High Court in England and Wales has today handed down its judgment in the Financial Conduct Authority’s (FCA) business interruption insurance test case The Financial Conduct Authority v Arch & Ors. The FCA has won what is being described as a ‘significant victory’ on behalf of holders of business interruption insurance

The 160 page judgment found here, will bring welcome news to what the FCA estimates is as many as 370,000 business owners who are seeking pay-outs under their policies following the coronavirus pandemic.

Following expedited proceedings, the judgment brings highly anticipated guidance on the proper operation of cover under certain non-damage business interruption insurance extensions.

Not only will this judgment have implications for businesses in Northern Ireland, the eyes of the insurance sector and businesses throughout the Republic of Ireland will be firmly fixed on the potential repercussions of this decision as outlined in our previous commentary.

In the Republic of Ireland, a number of test cases have been taken by publicans against FBD Insurance and are due to be heard in the Irish Commercial Court in October 2020. Whilst this judgment will not be a ‘binding precedent’ in the Republic of Ireland, it is certainly shall be of interest and possible help to the High Court in Dublin

The Judgment

A total of 21 lead policies were considered and relevant provisions in the policies broadly fell into three categories:

  • Disease wordings: provisions which provide cover for business interruption in consequence of or following or arising from the occurrence of a notifiable disease within a specified radius of the insured premises.
  • Prevention of access / public authority wordings: provisions which provide cover where there has been a prevention or hindrance of access to or use of the premises as a consequence of government or other authority action or restrictions.
  • Hybrid wordings: provisions which are engaged by restrictions imposed on the premises in relation to a notifiable disease.

Given the sheer volume of policy wordings considered over the eight-day hearing, the Judgment is extremely detailed and businesses should examine and take advice upon the particular policy wording relevant to them.

The implications of the judgment

A key point of note from the judgment, and a lifeline to some business owners is that the Court provided clarification on the need for the policyholder to prove that an outbreak occurred within the relevant area within their policy. Something which insurers repeatedly sought to argue.

Clarification was also given on the requirement for individuals to be ‘diagnosed’ with Covid-19 and symptomatic within the relevant policy area, for cover to be granted.

Much of the case centred around what constitutes ‘interruption’ with some insurers taking the extreme position that it meant a physical obstruction or impossibility or alternatively, a complete cessation of the business. The Court largely held that “interruption” did not require a complete cessation of the business, but was intended to mean “business interruption” generally, including disruption and interference with the business.

Huw Evans, director general of the Association of British Insurers, said:

“Insurers have supported this fast-track court process led by the FCA to help bring clarity for customers and we welcome the speed with which the court has delivered a ruling.

“The judgment divides evenly between insurers and policyholders on the main issues. The national lockdown was an unprecedented situation that posed understandable questions of interpretation for some business insurance contracts.

“Insurers always regret any contract dispute with their customers and will continue to reflect on feedback from recent events.”

Coronavirus has caused and is continuing to cause substantial loss and distress to businesses and many are under immense financial pressure to stay afloat. This judgment is being viewed as a lifeline by many business owners, particularly those with wordings similar to those considered in the test case.

Importantly, the Court did not find that the 8 defendant insurers are liable across all of the 21 different types of policy wording in the representative sample considered by the Court.

Instead what the Court did was provide guidance as to how business interruption insurance wordings should operate in the context of the Covid-19 pandemic which has brought such a devastating effect on businesses in the UK and Ireland.

Next Steps

At Lacey Solicitors, we are assessing this judgment in detail and are working closely with insurers, brokers and their policyholders both in Northern Ireland and the Republic of Ireland to determine whether the facts of their individual circumstances satisfy the requirements of the policy wordings in establishing cover.

Business interruption claims will remain complex to assess and quantify and whilst this case is of immense benefit, it is not a silver bullet. The test case was not intended to encompass all possible disputes, but to resolve some key contractual uncertainties and ‘causation’ issues to provide clarity for policyholders and insurers. The judgment does not determine how much is payable under individual policies but will provide much of the basis for doing so.

Clearly time will be needed to fully digest the judgment both by insurers and their policyholders.

The next steps for business owners will be to;

  • Speak to their insurers or legal representatives and allow them to read the judgment in line with their policy to see how the principles laid down by the court applied to their particular policy wording, either directly, or indirectly.
  • Consider what additional issues will be needed to establish and prove a valid claim bearing in mind that the judgment considered 21 lead sample wordings from eight insurers and reached different conclusions for each.

The FCA and insurers are considering the judgment and what it might mean in respect of any appeal. Any applications to appeal will be heard at a consequentials hearing before the High Court. The FCA is seeking to have a consequentials hearing as early as possible.

The FCA and insurers have agreed that they will seek to have any appeal heard on an expedited basis, given the importance of the matter for so many policyholders. It is widely anticipated that any appealing party will issue a ‘leapfrog’ appeal directly to the Supreme Court, Court to expedite the final decision on this crucial case.

Irish Insurers and Consumers eye UK Covid-19 Business Interruption Test

Business Interruption underwriters working from the discomfort of their homes have been pouring over their previous craftmanship more than most in the industry in recent weeks. Not without good reason. The stakes are high. The future of their business may well come down to some perceived uncertainty in the small print. If ever the idiom the devil is in the details were true it’s now.

Court Scrutiny

The British Financial Conduct Authority (FCA) is to seek clarity from the courts about whether the wording of some Business Interruption insurance policies in the UK should provide cover as a result of the Covid19 pandemic. The regulator said it would select test cases with business interruption policies containing the most frequently used policy wordings that have caused uncertainty for firms trying to claim. In doing so, the Authority says it still believes that most claimants on business interruption policies do not have the right coverage to warrant a pay out.

It is reported that the matter will be before the courts as early as July.

The Hiscox Action Group

One under scrutiny is a Hiscox policy with a Business Interruption clause. In the UK a group of Hiscox policyholders, made up of publicans and restauranteurs has rallied and met with the FCA last week, prior to the announcement to refer policy wording to the courts. Hiscox, one of the Lloyds of London members that services the Irish market, has told customers that its policies do not include diseases linked to pandemics such as coronavirus “due to the difficulty of insurers being able to quantify the potential risk”.

Concessions in Ireland

Retail and Vintners groups in Ireland are at the centre of the current uncertainty. The Government in response to the growing Covid19 crisis asked all Public Houses to close on the 15th March. On the 27th of March the government ordered the closure of public houses. Certain insurers initially indicated that valid claims from closures after 27th March would be met.

After lobbying from Industry Groups Minister Donohoe is reported as having extracted two concessions from insurers.

The first is that the insurers accept that the request from the government to shut down pubs was in fact a direction that the pubs were not free to ignore. As such valid claims from the initial shut down on the 15th March should be met.

The second point is that where there is doubt in the wording of a policy, this doubt should be exercised against the insurer. This is merely an iteration of the contra proferentem rule which would apply in any event and ultimately adds nothing to the debate other than an agreement on what is the stated law. Insurers have been steadfast in making it clear that these ‘concessions’ do not mean that they will now be covering any insured who would not otherwise have been covered.

Battle lines have been drawn between Industry Groups and certain Insurers where there are perceived uncertainties in policy wording. Hiscox Policyholders in Ireland will be eyeing the UK court action, as will many other Irish policyholders of GB Insurers with English Law jurisdiction clauses.

Principles of Construction

Irish Insurers and their policyholders will be looking to the UK action with more than a little interest. The Supreme Court in Ireland has confirmed in Analog Devices v Zurich Insurance and others and Emo Oil v Sun Alliance and London Insurance Company, that the principles of construction as set out by Lord Hoffmann in the UK case of ICS v West Bromwich Building Society should be applied to the interpretation of insurance contracts. Hoffman LJ set out the principle in five paragraphs that would guide the court in reaching an interpretation where the policy was clear and unambiguous. What if there was no such clarity?

In his Supreme Court judgement in Analog Devices Geoghan J thought it worth quoting a passage from the standard work Ivamy General Principles of Insurance Law 6th ed.

“Since exceptions are inserted in the policy mainly for the purpose of exempting the insurers from liability for a loss which, but for the exception, would be covered by the policy, they are construed against the insurers with the utmost strictness. It is the duty of the insurers to except their liability in clear and unambiguous terms.”

Contra Proferentem and Common Sense

Where exceptions to liability are not clear and unambiguous the contra proferentem rule shall apply. That would be a disaster for those insurers who would seek to persuade the court that the Industry could not possibly have insured against this once in a century global event. They would do well to refer to the Lord Diplock’s dicta in Anntaios Compania Naviera S.A. v. Salen Rederierna A.V. and quoted by Hoffman LJ in his guiding principle.

“If detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense’.”

The devil is in the details.

Nervous Shock Cases in the Republic of Ireland and Northern Ireland – An Update.

A woman has been awarded more than €87,000 in a nervous shock case by the High Court in the Republic of Ireland for post-traumatic stress disorder (PTSD) after she saw the partly decapitated body of a motorist who had just crashed into a bus.

This case highlighted the complexities of ‘Nervous Shock’ cases and the distinction between primary and secondary victims.

The Plaintiff, Lisa Sheehan, (36) was driving home from work in Cork city on 28th January 2017.

On her way home, near Mallow, some debris struck her car causing her to halt.

She got out of the car to investigate and saw a damaged bus and a severely damaged car.

She glimpsed a ‘badly disfigured and partly decapitated body’ which she initially thought was a child but transpired to be the body of the driver of the car.

Despite being in an understandable state of shock, Ms Sheehan called the emergency services and started searching the surrounding area for any others that may have been thrown from the car but there were none.

She saw the bus driver whose face was covered in blood.

Three days after the accident she went to her GP after suffering a panic attack at work. She became tearful and agitated and could not get the images of the scene of the accident out of her head.

She was prescribed anti-depressants, given counselling and was out of work for five weeks with further intermitted absences due to anxiety.

She suffered flashbacks and nightmares and so gave up her job in February 2019. She continues to receive counselling and medication.

She was diagnosed with moderately severe post-traumatic stress disorder.

Her case is that those injuries were the result of the negligent operation or control of both the bus and the car. She sued Bus Éireann and FBD Insurance which provided cover for the deceased motorist.

Liability

FBD Insurance admitted that the accident was caused by the deceased car driver.

Both Bus Éireann and FBD however argued that Ms Sheehan’s psychiatric injuries did not give rise to any cause of action recognised by the law and they did not owe her a duty of care.

The Defendant argued that Ms Sheehan was a ‘secondary victim’ of the accident. She had no ties to the driver and only ‘came upon’ the accident and did not see the actual collision.

They argued that even if Ms Sheehan could establish her psychiatric illness was reasonably foreseeable as a result of the negligence, she could not satisfy the requirement to bring herself within a restricted category of victims and defined in previous case law.

The Law on Primary/Secondary Victims

A secondary victim is someone who, when witnessing an accident, suffers injury consequential upon the injury, or fear of injury, to a primary victim.

Because of the potential for multiple claims for damages arising out of a single accident, the courts have always been anxious to restrict the numbers of plaintiffs by the imposition of control tests which are hurdles to be cleared to establish the necessary proximity of relationship between the plaintiff and the primary victim.

In the UK a leading case in this area is the case of Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. This was a case arising from the Hillsborough disaster and a number of plaintiffs claiming nervous shock from having witnessed the events on television and at the same time knowing that they had friends and family in the crowd that day.

Lord Oliver in that case set out the distinction between primary and secondary victims. A primary victim is one involved mediately or immediately as a participant and a secondary victim one who is no more than a passive and unwilling witness of injury to others. The claimants were all classed as secondary victims since they were not in the physical zone of danger. On a public policy basis, those plaintiffs were ruled out of having a claim for damages as they were not present at the location of the events themselves.

This case held that for secondary victims to succeed in a claim for psychiatric harm they must meet the following criteria:

  • A close tie of love and affection to a primary victim
  • Witness the event with their own unaided senses
  • Proximity to the event or its immediate aftermath
  • The psychiatric injury must be caused by a shocking event

The Irish Courts (to my knowledge) have never dealt with a case quite like the Alcock case, but it is entirely possible that the Irish Courts could arrive at a similar conclusion if they were ever faced with a similar case.

The Irish Courts agree with the UK Courts in that it is not intended to compensate secondary victims for mere grief, distress or sorrow and this has been held in such cases as Larkin v Dublin City Council [2008] 1 IR 391 and McLoughlin v O’Brien [1983] 1AC 410.

Judgment

The Defendants referenced the Alcock case and argued that Ms Sheehan could not bring herself within this restricted category namely because she did not have a close tie of love and affection to the primary victim (i.e. the deceased driver).

Mr Justice Keane in this case acknowledged that the law on primary/secondary victims in nervous shock cases was far from settled in Ireland.

He confirmed however that he was satisfied Ms Sheehan was a primary victim as her car had been struck by “debris from the crash.”

Interestingly the Justice Keane in this case specifically referenced Ms Sheehan’s role as ‘a rescuer’ having searched the area in the darkness in the immediate aftermath, exposing herself to danger ‘through her selfless and civic spirited actions’ he said.

This again strays slightly from the UK position set down in the case of White v Chief Constable of South Yorkshire [1998] 3 WLR 1509. This case again arose from the Hillsborough disaster, but the claims differ from those in Alcock in that they claimed for psychiatric injury from police officers on duty that day and not relatives.

Their claims for nervous shock were based on the fact (amongst others) that as rescuers, they were promoted to primary victims. Their claim was dismissed in the House of Lords and it was held that;

To amount to a primary victim, even a rescuer must demonstrate that they are in the ‘zone’ of physical danger. Since, the Plaintiffs were not themselves at risk of physical injury, their claims could not succeed.

When the facts of the White case are placed alongside Ms Sheehan’s case one wonders whether Ms Sheehan was herself in the ‘zone’ of physical danger?

Justice Keane states that Ms Sheehan was in the area of risk of foreseeable physical injury following the accident and he was satisfied that she was a participant in the accident, albeit one on the periphery of it.

It is a most interesting nervous shock case not least because of the difference in law on primary/secondary victims in Northern Ireland and the Republic of Ireland and certainly the full Judgment when available online will provide for interesting reading.

The press article can be found here.

Business Interruption Insurance and Covid-19. A Pandemic for the Insurance Industry.

As a result of the global spread of Covid-19 and with the number of confirmed infections rising globally, businesses are looking to their insurance policies and the terms therein to establish whether or not they have any business interruption coverage to help them through these difficult times.

Business interruption policies are policies of indemnity, the purpose of which is to put the business in the position they would have been had there been no interruption subject, of course, to limits and terms and conditions of the policy.

Lacey Solicitors has seen an increase in instructions relating to the terms of these business interruption policies where it transpires that, more often than not, business disruption typically is included within the policy.

The query therefore arises, can a business utilise the business interruption cover in their policy of insurance to claim back their losses arising from the spread of Covid-19?

To answer this one must carefully review a business’s policy of insurance, but a history lesson is also helpful to understand the wording of these policies.

The 2003 Severe Acute Respiratory Syndrome (SARS) Outbreak was one of the largest losses to the insurance industry ever recorded.

By way of comparison, SARS was also a Coronavirus and also began at a Chinese wet market.

Covid-19 however has dwarfed the death and infection rate of SARS with current figures at the time of writing as;

349,090 infections and 15,296 deaths globally over the past 4 months to date.

SARS however had 8098 infections and 774 deaths over a 20-month period.

Insurers paid millions in business interruption losses as a result of the SARS outbreak and given those losses, insurers quickly amended insurance policies to list the diseases for which the Insurer is in fact providing cover.

This would cover losses as a result of interruption of the business carried on at the premises as a result of illness sustained by any person resulting from an outbreak of disease which the local authority has stipulated will be notified to them and any the insurers added themselves, but would allow insurers to refuse to deal with claims beyond the scope of that list.

In these instances, such lists are often entitled ‘Notifiable Diseases’ but our experience is that this is not always the case.

On the issue of these lists Axa Insurance DAC for example said in a statement earlier this month:

“In general, when our Business Interruption policies provide an extension in cover for infectious diseases, they list the diseases by name. Only for those diseases will they compensate for financial losses resulting from premises having to close….Our wordings don’t refer to a general class of notifiable diseases, but they name each disease individually.”

In the Republic of Ireland, on 20th February 2020, Minister for Health, Simon Harris TD signed the ‘Infectious Diseases (Amendment) Regulations 2020’ to include Covid-19 on the existing list of notifiable diseases.

Sometime later on 5th March 2020 Covid-19 was classed by the UK Government as a “notifiable disease.”

The dates are important so as to accurately measure the extent of the losses sustained. These dates are in effect the ‘trigger dates’ as to when cover begins after outbreak.

The Hong Kong Courts following the SARS outbreak considered these issues in New World Harbourview Hotel Co. Ltd v ACE Insurance & Ors [2012] HKEC 264. The case confirmed that insurance cover is not (usually) retrospective and that loss will only arise as a consequence of the insured peril that triggers the policy. In that case, losses that occurred before the date the SARS virus was added to the 1st schedule of the Quarantine and Prevention of Disease Ordinance (similar to our list of Notifiable diseases) were not covered by the Insured’s policy.

Although this is, in some respects, good news, it does not automatically mean that businesses will be able to claim under their business interruption insurance.

The Association of British Insurers says most business insurance policies are still “unlikely” to cover losses.

AXA Insurance DAC stated:

“When Covid-19 was added to the list of notifiable diseases in England, it did not change policy coverage.”

The Insurance Industry will argue that insurance is effective, available and affordable to the public and business community at large only if Insurers are able to accurately assess their liability and price risks in a way that allows for insurance to remain viable for all.

How then could an insurer price in a disease that did not exist at the time they incepted the policy? They will likely collectively ‘dig their heels in the sand’ that if it wasn’t on the list at policy inception, it is not covered.

One would have thought therefore that the vast majority of business interruption policies would provide for a list of the diseases for which the Insurer is in fact providing cover.

Our experience now however is that this is not always the case.

Indeed, some policies specifically confirm an indemnity as a result of a business being affected by an outbreak of a contagious or infectious disease. We have read with interest one such policy which gives no breakdown or definition of a contagious or infectious disease and no restrictions on that cover.

The Insurer of that policy is seeking to argue that it provides business interruption for normally expected interruptions that might impact a business in its day to day operations.

Some insurers during this crisis are allowing business owners to ‘cancel’ free of charge their contract of insurance where the business has closed as a result of the current crisis and business owners are (understandably) struggling to pay premiums where a business is currently closed. An insurer may even go so far as to offer a refund of any outstanding premiums for the duration of the crises. To that, we say that a business owner should be mindful of this, where a cancellation and/or refund may be construed as acceptance of the position of the insurance company.

The Insurance industry shall wish to maintain the argument that global and widespread issues such as Covid-19 are too large for the insurance industry to bear and would, if they did have such a liability, involve insurance premiums to a business at unaffordable levels.

Over the past 100 years or so Insurers have learned to know to exclude eventualities such as Nuclear War, Civil Unrest, Radioactivity, and importantly, a long list of diseases etc. The more prudent insurer, following the SARS outbreak took appropriate steps to amend their policies to reflect the possibility of a second outbreak.

We would argue therefore that an insurer who neglects to sufficiently define the extent of their coverage in the policy wording or sufficiently restrict or exclude liability in this eventuality does so at their peril.

Lacey Solicitors has solicitors qualified in NI and ROI that are dedicated to complex Business Interruption claims. In addition to this, all our solicitors are experienced in the technically demanding task of policy interpretation. The expert handling of Business Interruption claims is part of our core offering to Insurers, Policyholders and private clients.

In the first instance, we are ready to respond to prospective claimants by reviewing the extent of policy cover provided by the actual policy. Thereafter we can discuss our prospective involvement on your behalf and show you where there may be cover that might respond to your loss.

High Court Average Personal Injury Awards Drop by 29% in 2018

According to Court Service a total of 22,049 personal injury suits were filed in Ireland last year, at all Court levels.

This was a minor decline on the 22,417 filed the preceding year.

Nevertheless, there was an insignificant rise in the sums granted in lower Courts across the state.

The quantity awarded in personal injuries cases rose from €3.5 million in 2017 to €4.5 million in 2018 in the District Court, and from €20 million to €23.6 million in the Circuit Court.

The Circuit Court can make awards of up to €60,000, while the District Court make awards of up to €15,000.

The amount granted in the Circuit Court increased from €19.8m to €23.5m between 2017 and 2018, with the average sum awarded rising by 2.8% from €18,488 to €19,014.

The overall sum granted in the District Court soared from €3.49m in 2017 to €4.5m last year, with the average sum awarded rising by 4.5% from €7,643 to €7,987.

The statistics confirm the assessment of previous High Court President Mr Justice Nicholas Kearns, who stated earlier this year that: “while the Court of Appeal had recalibrated awards at the higher end, this descending reach effectively immobile in the High Court and was not been seen in courts below it.”

Mr Justice Kearns directed the Personal Injuries Commission, which proposed the setting up of a Judicial Council to recalibrate the range of awards for less serious injuries.

Legislation permitting for the Judicial Council was approved by the Dáil in early July 2019.

In addition, Chief Justice Frank Clarke expressed a “little caution” must be applied with the decreases in awards.

However, he contended “all that being said, the fact that there was a considerable drop in the average level of High Court award in ordinary personal injuries actions is a crucial objective set of figures which needs to be taken into account in the present debate.”