6.1 Caps on Damages in Personal Injuries Litigation
In 2019, the Commission published its Issues Paper on Capping Damages in Personal Injuries Actions (LRC IP 17-2019) (5th Programme of Law Reform, Project 9).
The recent Reports of the Costs of Insurance Working Group (CIWG) and of the Personal Injuries Commission (PIC) recommended that the Commission should examine whether it would be constitutionally permissible to provide for a statutory regime that would place a cap or tariff on some or all categories of damages in personal injuries cases. As such, this issues paper examines whether it is appropriate to legislate for a cap to be placed on the levels of damages which a court may award in respect of some or all categories of personal injury claims.
The Commission’s project is primarily about legislation that could cap what is called “general damages”, which is the sum of money awarded for an injured person’s “pain and suffering”, in other words, an amount that compensates for the actual physical or mental pain suffered by the person.
The Issues Paper notes that in Ireland, the courts have, through case law since 1984, developed and adjusted a maximum cap for general damages for the most catastrophic type of injury. In addition, since 2015 the Court of Appeal has developed a three-point scale to ensure that awards of general damages are proportionate to the injuries suffered. Complementing this case law on general damages, since 2003 legislation has provided for the publication by the Personal Injuries Assessment Board (PIAB) of wide-ranging guidelines for the award of general damages, called the Book of Quantum which is due to be replaced by Guidelines to be published under the auspices of a Committee of the Judicial Council being established under the Judicial Council Act 2019.
The Issues Paper identifies that legislation on capping damages could be open to constitutional question if, in relation to the right to bodily integrity or property rights, it did not pass a test of proportionality. Separately, capping legislation could also be at risk of a constitutional challenge if it either: (a) delegated the capping power to a Minister without providing sufficient guiding principles; or (b) involved an interference with the proper powers of the judiciary, that is, breached the appropriate separation of powers between the Oireachtas and the judiciary.
Having considered these recent developments in the law and the relevant constitutional issues, the Issues Paper then discusses 4 possible legislative models for capping damages:
Model 1: a cap set by primary legislation that would take a similar form to how sentencing occurs in most criminal cases, in which the courts impose sentences using a proportionality test.
Model 2: proposes a scheme under which general damages are capped and all awards for lesser injuries are indexed to the cap.
Model 3: proposes that either Models 1 or 2 (or any other method of capping) could be enacted, but in which the Act would delegate determining the details of the cap to, for example, a Minister or some other Regulation-making body.
Model 4: could be described as involving an approach that is closest to the current position, in that it proposes that the courts should continue to determine the level of awards of general damages through case law, as supplemented by the significant new provisions for Personal Injuries Guidelines under the Judicial Council Act 2019.
In addition to setting out these four possible models for capping damages, the Issues Paper also invites interested parties to suggest any other approach to capping damages.
6.2 Liability of Unincorporated Associations
In 2019 the Commission began work on its project concerning the liability of unincorporated associations (5th Programme of Law Reform, Project 12).
The 2017 decision of the Supreme Court in Hickey v McGowan has identified the need for a review of the civil liability of unincorporated associations. The plaintiff alleged that he had been sexually abused between 1968 and 1972 by a member of the Marist Order of Religious Brothers, an unincorporated body. The Court held that, while the plaintiff was entitled to seek and obtain judgment against individuals who were members of the Order between 1968 and 1972 on the grounds of their vicarious liability as a group, he could not obtain judgment against the Order as such. The likely effect of this was that the plaintiff would not obtain judgment against the current assets of the Order.
The decision in the Hickey case reflects the long-established common law view that an unincorporated body, which also includes many sporting clubs, has no separate legal character distinct from its members. Thus, in Murphy v Roche and Ors, the High Court held that the plaintiff, a member of a GAA club who fell and injured himself at a dance on the club’s premises, could not sue the club because he would, in effect, be suing himself. It has been suggested that this exclusion from civil liability of unincorporated associations is difficult to reconcile with the right to equal treatment under Article 40.1 of the Constitution and the right of access to the courts under Article 40.3 and under Article 6 of the European Convention on Human Rights. By contrast, criminal liability may be imposed on an unincorporated club, at least in respect of statutory offences. Thus, in Director of Public Prosecutions v Wexford Farmers Club, the High Court held that the defendant club could be convicted for an offence under the Intoxicating Liquor Act 1988, which applies to a “person” and which was defined in the Interpretation Act 1937 (and now in the Interpretation Act 2005) as meaning both a corporate body and an unincorporated body of persons.
The project will therefore address: whether and when separate legal personality may be ascribed to unincorporated associations; and whether members should be able to sue their own unincorporated associations, including sports clubs. The project may also address whether there is a need for greater clarity as to the criminal liability of unincorporated bodies.
  IESC 6, [ 2 IR 196
 See McMahon and Binchy, Law of Torts 4th ed (Bloomsbury, 2013) at para 39.25
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