Two ‘constitutionally permissible’ models for personal injuries payment cap
The Law Reform Commission has identified two “constitutionally permissible” models for capping personal injuries pay-outs in Ireland.
It concludes that the capping model recently enacted in the Judicial Council Act 2019, whereby the courts will continue to determine the level of awards of general damages through case law and guidelines drawn up by a new committee, meets the necessary constitutional tests.
Although another model, based on a variant of Australian and English legislation, could also be constitutionally permissible, the law reform body believes it “would be entirely appropriate, and desirable” for the newly-implemented model to be “given some time to be applied in practice”.
This alternative permissible model combines elements of the New South Wales Civil Liability Act 2002 and the England and Wales Civil Liability Act 2018, under which general damages are capped and all awards for lesser injuries are indexed to the cap.
Welcoming the report, The Bar of Ireland said it agrees that the judicial guidelines model “fully respects the separation of powers between the legislature and the executive and Oireachtas; as well as providing for proportionality and fairness for those seeking compensation for injury suffered, and the particular circumstances of their case”.