High Court rules that ‘The Uplift’ can exceed the value of the award for the dominant Injury in applying the new Guidelines.

In the case of McHugh v Ferol the Court was asked to accept that the value of the uplift for less dominant injuries can exceed the value of the award for the dominant injury. The Court in accepting the approach undertaken by Coffey J. in The Lipinski Judgement, noted that the guidelines do not provide advice as to the process a court should undertake when assessing the uplift to ensure that a claimant is fairly and justly compensated for additional pain and suffering. It noted that in reaching his decision in Lipinski that Coffey J. did not set out the process he arrived at to calculate the uplift of €25,000 in circumstances where the main injury attracted €35,000.

The Court held that the uplift could in fact exceed the amount awarded for the dominant injury.

““Uplift” simply means to raise. The rise in damages for pain and suffering arising from the non – dominant injury in any particular case, could well exceed the award of damages for the dominant or main injury. There is nothing in the Guidelines to suggest that the single uplift is restricted to a proportion of the damages awarded for the main injury. This Court can well envisage a circumstance in which a fair and proportionate uplift would exceed the general damages awarded for the dominant injury.”

For illustrative purposes the Court outlined how a claimant who suffered from multiple serious injuries would not be justly compensated if the uplift could not exceed the award for the dominant injury.

In the McHugh case, whilst the court accepted the principle that the uplift could exceed the award for the dominant injury it did not do so in the case at hand. Murphy J. assessed the value of the dominant Injury at €60000. She then sought to place a value on each of the less dominant injuries. The cumulative value of which was €65,000. The Judge settled on a figure for the uplift at half of the cumulative value, being €32,500.

“Taking into account the roll up factor and the overlap of injuries, the court considers that an uplift of €32,500, represents fair and just compensation for all the additional pain, discomfort and limitations arising from the plaintiff’s lesser injuries.”

The Judgement can be read here.

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.

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.”

Insurer’s right to carry out surveillance on Plaintiff justified in the European Court of Human Rights.

Mehmedovic v Switzerland involved the observation of Mr Mehmedovic and, his wife, in public areas by investigators in order to ascertain whether his claim for compensation, was justified following a Road Traffic Accident in 2001.

Mr Mehmedovic sustained bodily injuries in which he was a car passenger. He complained that he suffered from epilepsy attacks and pain in his left arm. He pleaded that as a result of the accident he was unable to preform daily tasks of every day life.

When placed under surveillance it was evident Mr Mehmedovic was than capable of preforming daily tasks. His wife appeared in six photographs, but was not easily identifiable.

Mr and Ms Mehmedovic complained about the fact that they had been placed under surveillance, relying on Article 8 (right to respect for private and family life) of the Convention.

The Court observed that the relationship between an insured person and the insurer fell within the domain of private law.

It was evident that domestic courts had carried out a detailed analysis of the competing interests of the two parties and had held, in particular, that the insurer had a duty to verify whether the victim’s claim for reparation was justified, as it was also acting in the interests of all the insured collectively.

The ECHR held there was no appearance of a violation of Article 8 of the Convention and held that the application was manifestly ill-founded.

In this matter the court held, similar to the previous case of Verliere v Switzerland, that the insurer had an overriding interest that meant that the interference with the applicant’s personality rights was lawful and justified.

Furthermore, the court noted that the scarce information concerning Ms Mehmedovic, which had been gathered coincidentally, the Court considered that her assertions were strikingly ill-founded, in that the sparse evidence regarding her, gathered coincidentally and without relevance to the inquiry, in no way constituted systematic or permanent gathering of data.

Thus, there had therefore been no interference with her private life.

Release of the Fifth Edition of the Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland

The new edition of the Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland (the Green Book) has been released and is effective as of today.

This is the 5th edition of the Green Book compiled by a Committee of the Judicial Studies Board under the chairmanship of Lord Justice Stephens.

The previous edition was released six years ago in 2013 and coincided with major overhauls to the court system most particularly the increase in the County Court Jurisdiction to £30,000.00.

In previous Editions the figures were adjusted up to the date of publication using RPI on the basis that during the 5 years of Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland the Guidelines the figures could and would be further adjusted in individual cases.

The Committee concluded that this did not occur so in the fifth Edition they factored forward for inflation, again applying RPI at its present rate, to the midline of the next 5 years on the basis that the guideline figures would be applicable for the entire 5 year period.

The 5th edition has taken steps to amend (with the exception of extremely minor whiplash injuries) most figures upward by a value of roughly 20% from the 4th edition.

The 5th edition has for the first time accounted and made specific reference to Pleural Plaques. This of course will be in response to the Law passed by the NI Assembly which allowed compensation for the condition.

Pleural Plaques. On their own, asymptomatic pleural plaques would justify an award in the region of £3,500. It is unlikely that any case of distress and anxiety caused by a diagnosis of pleural plaques, absent some evidence of grave psychiatric sequelae, will recover outside the bracket of £6,000 – £17,500 however long the stress or anxiety lingers on.

Interestingly the Committee considered that the guidelines in the Fourth Edition for extremely minor soft tissue injuries to the neck and back remained adequate so those guidelines were not adjusted. They remain at ‘up to £3000.00’ and ‘up to £4000.00’ respectively.

The fifth edition does make a change to the award band immediately above this extremely minor injury band in for both neck injuries and back injuries.

Previous editions provided a range and accounted for a ‘bottom’ figure in these types of injuries.

E.g. As seen in the 4th edition;

Where a full recovery takes place without surgery within a period of several months and two years. This bracket will also apply to very short-term acceleration and/or exacerbation injuries, usually less than two years. – £3000.00 – £15,000.00.

In the fifth edition however, it has removed the ‘bottom figure’ and instead reads;

Where a full recovery takes place without surgery within a period of several months and two years. This bracket will also apply to very short-term acceleration and/or exacerbation injuries, usually less than two years. – Up to £18,000.00.

Ignoring the 20% increase that is seen across the board, it is interesting to note the removal of the bottom figure. Insurers may of course seek to argue that this removal, in theory, gives greater scope to Judges who may not be satisfied with; the severity of injuries, the extent of treatment required, impact of the symptoms or degree of pain, despite lasting for the required period of 1-2 years.

The new edition is available online in the Judicial Studies Board section of the JudiciaryNI website www.judiciaryni.uk/judicial-studies-board-publications and in hard copy from the Law Society Library.

Second and Final Personal Injuries Commission Report Published.

July 2018 saw the publication of the second and final report of the Personal Injuries Commission.

The Personal Injuries Commission was established in January 2017 to undertake extensive research into the cost of insurance and personal injury claims in Ireland.

The report highlighted that the level of general damages for soft tissue (whiplash) injuries in the Republic of Ireland runs at around 4.4 times that of Northern Ireland, England and Wales. It confirmed that such high levels of awards resulted in severe difficulties for business representatives, small firms and other individuals seeking insurance in the form of high premiums and devoting resources to defend the high volumes of claims based.

The Personal Injuries Commission recognised the negative impact of high insurance premiums on consumers, with individual consumers facing huge difficulties as they struggle to afford their annual premium.

Whilst it was beyond the scope of the report of the commission to analyse in detail why Irish payments and awards were higher than those in the UK. The report did acknowledge that historically it has always been the case and what the report did do was evidence, for the first time, the scale of this difference.

The report stated;

“a primary aim of government policy is to ensure that Ireland is and remains a good environment which businesses can establish and operate. Such considerations underpinned the establishment of the Commercial Court in 2004, the success of which is widely acknowledged. It is important for businesses to believe that they can operate in a market which is untrammelled by distortions or anomalies which are in inimical to their interest and survival. Excessively high awards and fraudulent injury claims clearly fall into the category of distortions or anomalies.”

The Personal Injuries Commission called for the judicial intervention which has occurred in Northern Ireland by way of the introduction of judicial guidelines for Judges.

The Judicial Council Bill which is currently before Seanad Éireann at the Second Stage will see statutory establishment of the Irish Judicial Council or ‘Comhairle na mBreithiúna.’ The report indicated that this would provide a unique opportunity to obtain such guidance for Judges in measuring general damages for personal injury ranging from the least to the most serious.

Judicial intervention has already been seen in the recent case of Jedruch -v- Tesco Ireland Limited 2018 IEHC 2005 available here.

In this case Justice Barr, in reaching an assessment of the appropriate level of general damages and having regard to various cases and in particular Fogarty -v- Cox (2017) IECA 309, Justice Barr recalibrated his approach to the assessment of general damage and personal injuries.

This ‘recalibration’ was praised within the report.

Such judicial guidelines would according to the report would;

  • Greatly increase levels of consistency with awards.
  • Increase the frequency of early resolution of claims
  • Reduced cost and generally provide a much better and informed PIAB process given that PIAB compiles and reviews the book of quantum by reference to awards in the Courts.

A second major suggestion by the PIC following research and consultation with members of the medical profession was the introduction of standard treatment plans for those who sustain soft tissue injuries.

It looked to other jurisdictions on this issue and referenced Ontario, which is currently in the process of introducing standard treatment plans to ensure that motor accident victims access timely and effective treatment. It referenced Sweden, where claimants must demonstrate they have sought early medical treatment in order to pursue a claim for compensation. It also mentioned South Australia, where standard guidelines for the medical treatment of soft-tissue (‘whiplash’) injuries have been published and are in widespread use.

It reasoned that early medical intervention and appropriate treatment for Claimants who sustained soft tissue injuries can reduce the duration of an injury and the level of impairment.

The issue however is that the Republic of Ireland remains the only state within the European Union which does not provide universal healthcare based on the criteria by the World Health Organisation. The implementation of a proposed model of universal health care was abandoned in 2015 due to projections that the envisaged system would be too costly and would still require the highest share of funds by general taxation.

The Personal Injuries Commission highlighted a lack of consistency in the recording and quoting of injury related data within the insurance industry itself and once again called for enhanced monitoring as regards to frequency and outcome of those injuries.

However Minister of State at the Department of Finance Michael D’Arcy, who chairs the ongoing Cost of Insurance Working Group (CIWG) confirmed that such a database would not be likely before 2019. Instead he has asked the Law Reform Commission to examine whether it would be legally and constitutionally possible for the Oireachtas to legislate to cap the amount of damages a court can award in respect of a personal injury claim.

Whilst is it clear that claimants injured in road traffic accidents often sustain serious injuries and whilst the report refrains from recommending the elimination of a claimants right to be compensated for pain and suffering, it did indicate that it had been presented with validated evidence that the Irish award levels for relatively minor injuries particularly soft tissue (whiplash) injuries are a multiple of awards in the UK for similar types of injuries. The Report indicated that the present system of personal injury compensation permitted not only bringing claims in the hopes of large payment for small injuries, but also resorting to fraud, exaggeration of minor injuries and collusion in putting forward fraudulent claims.

The Personal Injuries Commission was provided with evidence that there are groups who were drawn to Ireland by the High Court rewards on offer. This office has increasingly seen the phenomenon in recent years and has assisted insurers in combating fraudulent claims and a holiday compensation culture.

The report called for counter measures to be adopted and implemented by both the state, An Garda Síochána and insurers themselves.

There has been some criticism of this report, most notably from Justice Marie Baker who took issue with the findings of the High Court ex-presidents report. Justice Baker, who was appointed to the Court of Appeal earlier in this year, confirmed that the law of negligence and the rule that you are compensated fully was “as old as time.” She advocated for alternative proposals to assist the courts and promote consistency. She called for a dedicated medical negligence list in the High Court noting the fact that there has been a commercial list since 2004. She highlighted that a Judge who hears a personal injury case arising from an injury at work one day may indeed start the next day on a long medical negligence case knowing little to nothing about medicine.

The report was welcomed however by Rachel McGovern, Director of Financial Services at State Brokers Ireland who stated;

“The high cost of motor insurance is having a negative impact on consumers, on businesses, on community activities and economically. It is in all our interests, except those with dishonourable intent, that the Commission’s recommendations work,” she said. “Under the current system genuinely injured claimants are being made to feel like they are engaging in fraudulent activity by claiming what is rightfully theirs and that is unfair.”

It does appear that it will take some time before the ‘runaway claims culture‘ in Ireland referred to within the report will be under control. Indeed under the current system genuinely injured claimants are being made to feel like they are engaging in fraudulent activity by claiming that to which they are lawfully entitled. However this report and the recommendations therein will surely provide some hope to consumers and businesses who are paying exorbitant rates for insurance cover, and the insurers who battling exorbitant rates for insurance cover.