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Don't cap the amount paid out for injury claims, warns barrister body

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The body representing barristers has urged the country's law reform agency against recommending a cap on personal injury awards.

A limit on what can be awarded for many types of personal injuries is among a number of proposals being looked at by the Law Reform Commission (LRC).

The "fast-track" examination comes amid ongoing concern over high insurance costs and the impact these are having on the viability of businesses.

But the Bar Council has said a cap would raise constitutional questions. It has also urged patience with the work of a committee set up under the new Judicial Council to prepare guidelines on injury award levels.

In a submission to the LRC, the Bar Council said whatever measures were introduced by the Personal Injuries Guidelines Committee should be allowed to take their course.

"If the effect is not appreciable, then other more radical models may be considered," it said.

The submission also argued that the true causes for high insurance costs were "unknown" and that the only way to properly identify them was by analysing data rather than conjecture.

The issue of whether a cap should be introduced is expected to feature in talks around the formation of a new government. The possibility of a referendum on the issue has not been ruled out by Fine Gael or Fianna Fáil.

Four potential models for deciding on general damages - the sum awarded for an injured person's pain and suffering - are being looked at by the LRC. It began examining the issue on the recommendation of the Personal Injuries Commission, which found damages for soft tissue injuries were 4.4 times higher here than in England and Wales.

One option being considered is for the Oireachtas to set awards caps via primary legislation.

Under another model, general damages would be capped and all awards for lesser injuries would be indexed to the cap. The court would have discretion to determine the severity of the plaintiff's injuries and would then be required to award the corresponding percentage of the cap. But there could also be an allowance for a "judicial uplift".

Under a third model, details of the cap would be determined by a government minister or some other regulation-making body.

A fourth model under consideration proposes the courts continue to determine the level of awards through case law, subject to Judicial Council guidelines.

In its submission, the Bar Council said this was the "most desirable" of the four because it maintained a balance between providing more certainty on awards and retaining judicial discretion.

Irish Independent