I welcome the publication earlier this week of an Issues Paper by the Law Reform Commission on the subject of “Capping Damages in Personal Injuries Actions”. This particular project is included in the Commission’s Fifth Programme of Law Reform which was approved by the Government in March 2019 and arose out of recommendations made by both the Cost of Insurance Working Group and the Personal Injuries Commission
The purpose of an Issues Paper is to provide consultees with an opportunity to express their views and to make any related submissions on the questions that arise in the Paper. In this case the questions allow consultees to express their views on the constitutional issues that may be engaged were a statutory regime to be put in place that would place a cap on some or all categories of damages in Personal Injuries cases.
The Issues Paper sets out four possible models in relation to capping of damages:
1. A cap set by primary legislation, using a proportionality test on a scale from a zero award to a maximum possible.
2. A presumptive cap scheme which retains some judicial discretion.
3. Capping of awards by law but for the details of the cap to be delegated to some other regulation making body or a Minister.
4. A model where the courts continue to determine the level of awards for general damages through case law, as supplemented by the provisions of the Personal Injuries Guidelines under the Judicial Council Act.
The deadline for submissions on the Issues Paper is 31st January 2020 and I would urge those with an interest in this topic to make a submission to the Law Reform Commission. I look forward to the publication of the final Report of the Law Reform Commission on this topic which I understand is envisaged for next year and will, of course, carefully examine any recommendations proposed by the Commission in what is undoubtedly a very complex area of law.