Business Plus

Insurance

Judges have voted to reduce damages for soft tissue injuries but business lobby groups say the reductions don’t go far enough, writes John Kinsella

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New personal injury guidelines should lower the cost of claims. It will take a while for insurance premiums to reduce too

Personal damages awards for minor injuries in Ireland are among the most generous in Europe. As a result, public liability insurance costs for business are a huge burden for enterprise, sometimes so much so that the business is no longer viable.

Finally, some change is on the horizon. On March 6, the Judicial Council formally adopted new Personal Injuries Guidelines which, in theory, should reduce the cost of claims and therefore reduce insurance costs too. The guidelines received a mixed reaction from lobby groups, who contend that the guidelines don’t go far enough and that judges will still have discretion to work around them anyway.

The process of fixing the new injuries compensati­on process was itself curious. The Judicial Council was establishe­d in mid-2019 by an Act of the Oireachtas to represent the judiciary and to formalise operations such as education and training for judges and investigat­ing complaints against judges. The Act also delegated to judges the power to determine personal injuries and sentencing guidelines, which some argue should be a function of the legislatur­e.

A sub-committee of the Judicial Council went away to consider amendments to the Book of Quantum, the existing reference for fixing personal injuries awards. This committee drew up the new guidelines, which were then voted on by members of the judiciary on March 6.

The vote was a close-run thing. 146 of 168 Council members participat­ed in the virtual meeting, with 83 voting in favour and 63 against the guidelines. Neil McDonnell, who heads up lobby group ISME, observed: “It remains very difficult to see how the process of adoption of these guidelines by the judiciary, followed by their enactment by the Oireachtas, does not constitute a breach of Article 15 of the Constituti­on, which confers the powers to make laws exclusivel­y on the legislatur­e.”

The headline change has been the alteration to minor injuries, which now have a nominal cap of €12,000. According to ISME, this should bring most within the remit of the District Court, where legal costs are fixed by scale. The Personal Injury Assessment Board (PIAB) will also be bound by the new guidelines once they are establishe­d by law.

Credit for forcing the new guidelines on the judiciary and the legal fraternity is largely down to the Alliance for Insurance Reform (AIR), which assembled under the one banner 41 civic and business organisati­ons from across Ireland, representi­ng over 55,000 members with 700,000 employees. When the guideline details were announced, Alliance director Peter Boland expressed the organisati­on’s dismay at the new level of quantum outlined by the judges.

According to Boland: “Getting insurance costs down means cutting the general damages paid out for minor, fully recovered injuries. It would have taken reductions of 80% to the damages handed out for such injuries in order to do so.” In Boland’s opinion, examples of minor injuries that remain too high following the Judicial Council review include:

● Minor thumb injury (no sprain, no breakage). Was €21,200, reduced to €12,000 (-43%). Currently €4,580 in England and Wales.

● Whiplash. Minor, substantia­lly recovered. Was €15,700, now €6,000 (-62%). Currently €4,190 in England and Wales and will drop to €1,490 in May. Up to €1,125 in Germany. Unlikely to receive compensati­on in Sweden.

● Whiplash. Minor, full recovery expected. Was €19,400, now €12,000 (-38%). Currently €7,600 in England and Wales, will drop to €4,760 in May.

● Whiplash. Moderate. Was €30,200, now €23,000 (-24%). Currently €13,220 in England and Wales.

● Back. Minor, full recovery expected. Was €18,400, now €12,000 (-35%). Currently €7,600 in England and Wales.

● Ankle. Minor. Was €23,100, now €12,000 (-48%). Currently €7,410 in England and Wales.

For ISME, the positive developmen­ts in the new guidelines include:

● Scarring and burns are dealt with on a standalone basis. This is an improvemen­t on efforts to quantify scars on a ‘per-stitch’ basis. There is

also guidance on whether scars are visible or disfigurin­g.

For the first time, there is clear guidance on the issue of PTSD. This has been featuring more regularly in PI cases of late, especially in motor cases, and most especially in those involving injuries for minors.

There is solid new guidance on pre-existing conditions and injuries. Courts may now only award for them to the extent that the claimed injury has made them worse.

There is more explicit guidance on how courts should treat multiple injuries.

The District Court has jurisdicti­on to handle claims up to €15,000, and legal costs are lower than for the Circuit Court, the next rung on the litigation ladder. However, Neil McDonnell believes clear instructio­n on the quantifica­tion of awards levels provides a road map to the legal profession on how to increase awards.

He explains: “The guidance on PTSD, and the introducti­on of a new category for ‘Minor brain damage or head injury, if any’ increases the likelihood of an increased volume of multiple injury claims. The combinatio­n of a minor neck injury, a minor brain injury, and PTSD would see the whiplash caseload staying in the Circuit Court, perhaps with an uplift in quantum.

“In the UK, the Civil Liability Act 2018 has radically recalibrat­ed downwards awards for minor injuries. So even with an average 52% reduction in awards for minor injuries, we remain far from addressing the 4.4 multiple in Ireland vs. the UK establishe­d by the Personal Injuries Commission. Ireland will still be paying out extremely generous awards to people with little or nothing wrong with them.”

lllThe new guidelines take effect once Section 99 of the Judicial Council Act 2019 is commenced by the Minister for Justice, and they will replace the Book of Quantum. However, the guidelines will apply only to injuries that have not yet been assessed by PIAB. According to ISME, on the current timelines it takes to assess awards, this suggests a lag of up to two years before all injuries are assessed under the new rules. When the guidelines become operative before the courts, if judges depart from the award caps, they will have to identify the facts upon which they have relied for doing so.

Insurers are also underwhelm­ed by the Judicial Council’s review. Insurance Ireland says that the reductions could have been much greater had the proposals sought to bring Ireland more into line with the UK and other European countries, particular­ly on the issue of soft tissue injuries.

CEO Moyagh Murdock commented that insurers are concerned that for soft tissue injuries such as minor neck injuries an award range of €500 to €12,000 is indicated. “Interpreta­tion of ‘substantia­l recovery’ is going to have a significan­t bearing on the awards, and there is still a risk of judges making widely varying awards of damages in respect of relatively comparable injuries,” Murdock added. “Insurance Ireland believes that meaningful reductions in award levels will benefit consumers and lead to decreased volatility and increased competitio­n in the market over time.”

What AIR members want to know is when their insurance premiums will decrease. Not this year, would seem to be the answer. Peter Boland notes that it will be years before it’s clearer whether or not, or to what extent, awards of damages made by Irish courts are responsibl­e for the levels of insurance premiums. Neverthele­ss, there should be immediate downward pressure on legal outlays, as the guidelines provide greater certainty as to the level of damages likely to be awarded by a court if the case proceeds to trial.

According to Boland: “It is expected that this will lead to more early settlement­s, and therefore a reduction in the legal costs of both claimants and defendants. Where lower awards apply to a category of injury, it will result in many cases in future being commenced in a lower court. This also has an impact by reducing the costs recoverabl­e.”

Before a personal injuries claim reaches court, it firstly must go through the Personal Injuries Assessment Board. Costs escalate sharply when claimants step outside the PIAB framework, as they are entitled to do. Central Bank research in 2019 found that the average legal costs of settling personal injury claims in PIAB were under €800 compared with c.€16,000 where a claim is settled through litigation.

PIAB currently has c.19,000 claims waiting to be assessed, and these will be subject to the new guidelines. PIAB chief executive Rosalind Carroll believes the new Personal Injuries Guidelines should result in more predictabl­e court awards.

“This will mean parties involved in claims should have increased confidence in accepting PIAB awards and there will be no incentive to go to costly, unnecessar­y, and lengthy litigation. In this way, the new guidelines can significan­tly contribute to reduced claims costs, which insurers claim have contribute­d to high insurance premiums.”

ISME’s Neil McDonnell says that personal injuries awards constitute c.40% of the cost of the typical motor insurance policy. “On average therefore, we would expect to see a reduction of 52% in minor injuries awards to produce a 22% reduction in premiums, excluding any reduction in legal costs. Only time will tell if this will happen, but we will push PIAB to maintain an accurate database of claims informatio­n to see if there is an increase in multiple injury claims as a result of the Judicial Council’s guidelines.”

The all-island public procuremen­t market is worth €12.1bn and offers significan­t opportunit­ies for SMEs to win steady business and increase their sales. However, applying for public sector contracts can be daunting for many businesses, who may not know where to find out about public sector contracts or are cautious about tendering. The irony is that public sector buyers are keen to work with smaller companies, as they tend to be more invested in securing a positive outcome and are often agile, innovative and very accessible.

Small businesses can break into this lucrative market with tendering support and guidance. Here are ten tips to improve your tendering success.

1. DO YOUR HOMEWORK

Preparatio­n is the key to submitting a great tender response. Always be on the lookout for tender opportunit­ies, make sure they are accessible and that you can submit a competitiv­e response. Register as a supplier on tendering platforms such as eTenders.gov.ie and eTendersNI to receive alerts of upcoming tender opportunit­ies.

2. BE MORE COMPETITIV­E

Make sure your bid document fully sells your company’s capability. Have a clear understand­ing of your business and look at innovative ways of providing a service that will stand out with potential clients.

3. ONLY APPLY FOR TENDERS YOU BELIEVE YOU CAN AND SHOULD WIN

Focus your efforts and only apply for tenders that offer your business the greatest prospect of success, whether it is in terms of sub-sector, size, geography or technical requiremen­ts.

4. TRY NOT TO MISJUDGE WHAT THE BUYER IS LOOKING FOR

If you want your tender submission to stand out from the rest, you need to demonstrat­e that your company understand­s the buyer’s needs. What exact requiremen­ts do they have? Why is your company best placed to address their specific needs? Set out your proposed solution clearly and demonstrat­e how you can add value to their business.

5. WORK WITH OTHER COMPANIES

Joining forces with other firms can allow you to address gaps in experience and tender for larger, higher-value contracts.

6. INVEST TIME AND RESOURCES TO COMPLETE THE TENDER RESPONSE Try to submit the tender 24 hours prior to the submission deadline. This will demonstrat­e your competency as a company that respects deadlines and can deliver on time. 7. BUILD A TEAM THAT CAN BRING A GREAT DOCUMENT TOGETHER IN A SHORT TIME

The entire tendering process can average around three weeks. Surround yourself with a good team and have one central control point for the tender – perhaps under the remit of a senior team member.

8. REQUEST TENDER FEEDBACK

You may not win every tender you apply for but you can learn from this. Always seek feedback, which you can build into your approach for the next tender.

9. BE PATIENT, AS TENDER SUCCESS DOESN’T ALWAYS COME EASY

Tendering takes focused research and resources. It may take some time to find the right approach, whether it’s getting your documents correct, or trial and error with applying for the right tenders. Once you are successful, the return will be worthwhile.

10. AVAIL OF INTERTRADE­IRELAND’S TENDERING SUPPORTS

InterTrade­Ireland has a number of tendering supports to help businesses tender successful­ly for public sector contracts.

The go-2-Tender programme can n help you and your business learn how to write quality tender responses, through practical workshops and one-to-one mentoring.

Meet the Buyer events give n SMEs access to key staff who commission and procure goods and services on behalf of public sector clients.

For businesses planning their approach, InterTrade­Ireland’s tendering supports are an excellent first step. Find out more at https://intertrade­ireland.com/salesgrowt­h/tender-successful­ly/

 ??  ?? New Personal Injury Guidelines will eventually mean fewer damages claims end up in court
New Personal Injury Guidelines will eventually mean fewer damages claims end up in court
 ??  ?? ISME’s Neil McDonnell expects an increase in multiple injury claims
ISME’s Neil McDonnell expects an increase in multiple injury claims
 ??  ?? Caroline Sweeney Public Tendering Programme Manager InterTrade­Ireland
Caroline Sweeney Public Tendering Programme Manager InterTrade­Ireland

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