The Gazette 1993

GAZETTE

MWH

DECEMBER 1993

Society argues more needs to be done to prevent accidents on the roads.

are excessive. According to the

Davies Arnold Cooper Report, an

Irish court would be likely to award

£83,000 in compensation for pain

and suffering to a 20 year old

woman who had suffered loss of

eyesight in one eye with resultant

cosmetic disfigurement. The

Minister's proposal would mean

that such a person would receive

approximately £25,000 - the so-

called EC average. Would this be

generally regarded as adequate or

fair? In the Society's view, £25,000

for pain and suffering for the loss of

an eye with permanent

disfigurement for a 20 years old

woman would be totally inadequate

and unfair. The Society believes

that Irish levels of damages for pain

and suffering come closer to

providing realistic compensation for

the trauma and distress that is

endured by persons who suffer such

serious injuries.

(Section 3)

• There is a substantial risk that any

attempt by the legislature to set

limits on compensation awards

would be held to be

unconstitutional. It could be

contended that such legislation

would interfere with the rights of

people to have full access to the

courts to vindicate their legal rights

and would discriminate unfairly

between different classes of litigant.

Under the Constitution, the

administration of justice is vested in

the judiciary and not in the

legislature or executive.

(Section 4)

• The experience in America is

relevant to Ireland since there are

marked similarities between

American constitutional law and

Irish constitutional law. The courts

in a number of the American States

have held that statutes which

purported to place caps on awards

were unconstitutional on various

grounds. The submission sets out

details of a number of American

cases.

(Section 4)

• There is no evidence from those

American States where a cap has

been imposed that it has led to any

reduction in the cost of insurance.

• The Society acknowledges that there

is a link between the amounts that

insurance companies pay out by

way of compensation and the cost of

insurance. It says, however, that

pain and suffering awards account

for

less than half

of the total paid

out and, therefore, placing a cap on

awards for pain and suffering would

reduce the payouts by insurance

companies by very little. If the

Government were to cap pain and

suffering awards at, say, £100,000

(and it would surely by

unconscion-able to contemplate a

cap below that) it would make very

little difference to the costs of

insurance companies and, conse-

quently, to a lowering of insurance

rates because the vast majority of

personal injury actions are settled

without recourse to trial and most

case come within the jurisdiction of

the Circuit Court which now stands

at £30,000. Available evidence

suggest that awards for pain and

suffering exceed £100,000 in only a

very small proportion of cases.

(Section 5)

A recent publication

suggests that the average cost of

insurance-settled claims in Ireland

in the period 1979-1989 was less

than £2,500 per claim.

(Section 6)

• It is unfair of the Minister to seize

upon one factor in the overall cost

of insurance, namely, damages

awarded for pain and suffering in

personal injury cases, and single

that out as the sole way of reducing

insurance costs. If the proposal is

carried through, all it will do is shift

the burden from the insurers, who

represent those who are usually at

fault, onto those who are insured

who are usually not at fault.

(Section 5)

• Statutes which would freeze levels

of compensation at a particular point

in time would quickly become

outdated and unworkable and,

unless there were continuously

updated, would be bound to create

injustice.

(Section 8)

• In the not too distant past, the task

of assessing damages was left to

juries. Then the view was taken that

juries were getting it wrong and the

task was taken from them and given

to judges alone. Now there is a view

that judges are getting it wrong and

that they must be told how it should

be done. It is time to stand back and

ask where is all this leading to? The

onus is on the Minister to show that

his proposal would, in fact, lead to a

reduction in insurance costs. He has

not discharged that onus. The

proposal is without merit.

(Section

| Note

A copy of the full text of the submission

I is available to members of the Society

on request to Mary Kinsella at the Law

| Society.

•

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