“It’s unfair for the Government to lay the blame for the size of whiplash awards at the feet of the judiciary,” stated ISME’s Chief Executive Neil McDonnell recently, “Reports at the weekend of a threat to hold a referendum on general damages are not welcomed by ISME. There’s no need to hold a referendum on the matter as the Oireachtas already has the power to cap general damages if it so wishes.
“Neither Justice Kearns, in the second and final report of the Personal Injuries Commission, nor the Attorney General in his deliberations with the Cost of Insurance Working Group, have suggested that it would be unconstitutional to legislate caps into place for general damages,” he added, before continuing, “Indeed, in Justice Kearns’s exhaustive analysis of the general damages regimes in other jurisdictions, he makes clear that in all common law and civil law jurisdictions the Commission looked at (with the exception of New Zealand), the trend was towards legislative control of damages.
“In fact, the Civil Liability Act 1961 already caps general damages in the case of fatalities. This cap is amended from time-to-time by the Justice Minister, under statutory instrument. To our knowledge, this Act’s constitutionality has never been challenged.”
He also alluded to comments made by Minister D’Arcy, stating,
“If Minister D’Arcy is in possession of legal advices to the effect that introducing a legislative cap is unconstitutional, he should publish it now in the public interest. Otherwise, he should reflect the sense of urgency evident in Justice Kearns’ final report.”
ISME believes the Government should be working now with the judiciary on the outline of a revised Book of Quantum. In light of the weight of recent reports from the Personal Injuries Commission and from PIAB, it’s evident that range values for awards in the minor and moderate categories in the Book of Quantum need to be reduced by between 75% and 80%, he believed.