The Gazette 1993

GAZETTE

MWH DECEMBER 1993

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.

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

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) 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 • It is unfair of the Minister to seize upon one factor in the overall cost

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 i task was taken from them and given j to judges alone. Now there is a view i 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 8) | 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. •

SURVEILLANCE Discreet Listening and Recording Equipment Telephone For 1993 Catalogue Pegasus (01)2843819

• The Society acknowledges that there

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