The Book of Quantum Caroline Gill

Transcription

1 The Book of Quantum 2016 Caroline Gill 1

2 Section 22 of the Civil Liability and Courts Act 2004 First Book of Quantum 2004 Duty to have regard to Book of Quantum: The court shall, in assessing damages in a personal injuries action, have regard to the Book of Quantum. However not an exhaustive reference point: [Nothing] to prohibit a court from having regard to matters other than the Book of Quantum when assessing damages in a personal injuries action. 2

3 The need for the 2016 update Omatayo v Griffin [2016] IEHC 482 Book is: hopelessly out of date and of little assistance The Book of Quantum 2016 McGarry v McGarry [2015] IEHC 426 the Book has not been updated since it was first published in 2004 This is an unacceptable state of affairs and is to be deprecated. 3

4 Long awaited, up-dated Book of Quantum Guide lines as to the amounts that may be Assessed or awarded in P.I. claims The Book of Quantum st Book of Quantum categories 2 nd Book of Quantum categories It is based on samples from 51,00 closed personal injuries Claims from 2013 and

5 The 2016 Book what data? What sources Consultants behind new Book examined representative samples from over 51,000 closed personal injuries claims from 2013 and 2014 based on: actual figures from Court cases, insurance company settlements, State Claims Agency cases and Personal Injuries Assessment Board (PIAB) data. 5

6 2004 Book Four categories of injury Three ranges of severity 1. Head 2. Arms 3. Neck, back and trunk 4. Legs 1. Substantially recovered 2. Significant ongoing 3. Serious and permanent conditions 6

7 2016 Book New: categories of injury and ranges of severity 6 categories of injury 1. Head 2. Neck 3. Back and Spinal 4. Upper Limbs 5. Lower Limbs 6. Body and Internal Organs 4 ranges of severity 1. Minor 2. Moderate 3. Moderately Severe 4. Severe and Permanent Condition 7

8 SOME NEW ADDITIONS CONCUSSION PARTIAL FINGER AMPUTATIONS CLAVICLE INJURIES UPPER LIMB DISORDERS ACHILLES TENDON INJURIES LUNG LACERATIONS FOOD POISIONING 8

9 Some new awards added 1. Eye injuries Previously under fractures to the cheek ( 16,500 to 25,400) Now a sub-category of head injuries (transient or minor up to 9,800; total loss of sight in one eye up to 138,000) 2. Food poisoning Minor to moderate (up to 14,500) Severe and permanent ( 23,700 to 40,300) 9

10 Some injuries missing Psychological injuries still not covered Scarring injuries not covered (Green v Hardiman [2017] IEHC 17) 10

11 Changes in awards Whiplash Whiplash 2004 Substantially recovered within 12 months (up to 14,400) Within 24 months ( 11,500 to 17,400) Serious and permanent ( 59,400 to 78,400) Whiplash Minor with substantial recovery (up to 15,700) More serious minor injury (up to 19,400) Severe and permanent ( 44,600 to 77,900) 11

12 Changes in awards Back Injury Back injuries First two categories ( 16,300 and 11,700 to 19,600) More severe ( 18,300 to 69,700) Back injuries First two minor categories (up to 14,800 and 18,400) More severe ( 52,300 to 92,000) 12

13 Not everybody loves the new Book I do have a certain difficulty with the new Book of Quantum in that on its face, the information going into its make up comes not just from court awards or PIAB determinations but also to a significant extent from insurance company files. The difficulty is that those files will, as a matter of virtual certainty, include cases which are compromised due to possible liability factors. - O Sullivan v Depuy International Ltd [2016] IEHC 684, per Cross J. 13

14 Attitudes to new Book [I]t is this Court's view that it is important that this Court does have regard to the Book of Quantum 2016 [.] This is because, if this Court does not do so it would mean there would be less certainty regarding likely outcomes in personal injury cases before this Court. This uncertainty lessens the likelihood of personal injury cases being resolved without the need for court hearings [.] This uncertainty leads to unnecessary litigation, which leads to unnecessary and significant costs for defendants and critically also significant costs and risks for plaintiffs seeking damages for their injuries. 14

15 Sample assessment Identify category of injury under the 6 headings Examine severity of injury Examine range value Consider effect of multiple injuries adjust Sample assessment General damages for pain and suffering 10,000 Special damages Net loss of earnings Medication Physiotherapy Medical fees Total settlement 15

16 Limitations of Book Problems with complex cases Walsh v Tesco Ireland Ltd [2017] IECA 64: However, as in many of the more complex personal injuries cases, the Book of Quantum is only of limited value in a complex case of this kind. This is particularly so where a plaintiff sustains injuries which fall into a number of categories. 16

17 Future Developments? Should we have more frequent updates? Should we publish judicial guidelines such as in UK? Publication of actuarial or discount tables under sections 23 and 24 of 2004 Civil Liability and Courts Act 2004? Should we distinguish between categories of plaintiff? 17

18 Final thoughts Necessary reference tool Not suitable in every case Not fully comprehensive Develop on a regular basis and include more injuries 18

19 Civil Liability (Amendment) Act

20 Civil Liability (Amendment) Act 2017 Purpose of Act The purpose of the Civil Liability (Amendment) Act is to empower the courts, as an alternative to lump sum awards of damages, to make consensual and non-consensual periodic payments orders (PPOs) to compensate injured victims in cases of catastrophic injury where long term permanent care would be required. 20

21 Civil Liability (Amendment) Act 2017 Amendments gives the courts power to award damages by way of periodic payments orders; sets out principles regarding the security of payments of PPOs; provides that PPOs shall be subject to annual indexation; amends the Insurance Act 1964 to provide that the limits specified in section 3(4) of that Act shall not apply to PPOs; 21

22 Civil Liability (Amendment) Act 2017 Bankruptcy Amendments amends various provisions of the Bankruptcy Act 1988 to protect a claimant s periodic payment award in the event of the claimant s bankruptcy; The purpose of the amendments is to protect a claimant s periodic payment award in the event of the claimant s bankruptcy so that a claimant will continue to have the possibility of receiving the resources needed to cover necessary long-term care and medical attention and that such resources would not be available for distribution to creditors by the Official Assignee.. 22

23 Income tax amends the Taxes Consolidation Act 1997 to provide an exemption from income tax in respect of payments made to persons under a PPO; and The purpose of the new section is to provide an exemption from income tax in respect of payments made to persons under a periodic payments order. The exemption shall apply to PPOs made in this jurisdiction and to similar orders made in other jurisdictions. In this way, PPOs will have the same tax exempt status as exists for payments for damages under a lump sum arrangement. 23

24 Costs Amendments amends the Civil Liability and Courts Act 2004 to make clear the matters the court must consider in awarding costs in cases involving PPOs 24

25 Interpretation of Catastrophic injury catastrophic injury means, in relation to a person, a personal injury which is of such severity that it results in a permanent disability to the person requiring the person to receive life-long care and assistance in all activities of daily living or a substantial part thereof; 25

26 Civil Liability (Amendment) Act I. (1) Subject to subsection (2) and section 51J, where a court awards damages for personal injuries to a plaintiff who has suffered a catastrophic injury, the court may order that the whole or part of such damages which relate to (a) the future medical treatment of the plaintiff, (b) the future care of the plaintiff, (c) the provision of assistive technology or other aids and appliances associated with the medical treatment and care of the plaintiff, and 26

27 Civil Liability (Amendment) Act 2017 (d) where the parties consent in writing, damages in respect of future loss of earnings, be paid by a defendant in the proceedings concerned in the form of periodic payments to the plaintiff in such amounts as the court may determine (in this Part referred to as a periodic payments order ). 27

28 When deciding to make a PPO order Court shall have regard to Best interests of the Plaintiff The circumstances of the case including: 1. the nature of injuries suffered by the P 2. the form of award that would best meet the needs of the P Where parties agree to a PPO the parties apply to the Court for a PPO under terms of that agreement 28

29 Security of PPO Court may make a PPO where it is satisfied that continuity of the payments is secure Having regard to: Whether payments are guaranteed under the Clinical Indemnity Scheme or General Indemnity Scheme Whether payments due under Insurance Comp Fund or MIBI Court to consider the proposed means of payment are such as being capable of being made to P during their lifetime 29

30 Appeals An appeal shall lie from a decision of the High Court under s 51I, 51J or 51M to the Court of Appeal on a point of law only. 30

31 MORE TO Civil Liability (Amendment) Act 2017 S.7 OPEN DISCLOSURE OF PATIENT SAFETY INCIDENTS Information re patient safety incident [PSI] A PSI: an incident which has caused an unintended or unanticipated injury to the patient in the course of a provision of a health service to that patient An apology: in re an OPEN DISCLOSURE of a PSI means an expression of sympathy or regret 31

32 NOT ADMISSABLE Information and apology do not invalidate insurance [cover] ; do not constitute admission of liability or fault Not admissable in proceedings 32

33 Open disclosure apology 21 November 2017 Kelly J McCallig v HSE The President of the High Court, Mr Justice Peter Kelly, agreed with Eoin McCallig's father Anthony there must be a "better way" of dealing with cases involving catastrophically injured children than through litigation extending over years to a "bitter end" and last minute settlement offers. 33

34 Open disclosure meeting S.10 Information and apology does not constitute admission of liability or fault by: The health service provider An employee of that provider A health practitioner who provides a health service 10 (b) shall not,.. Be admissable as evidence of fault or liability 34

35 Information and Apology Information provided and apology given, Evidence of fault Professional misconduct not admissable as Poor professional performance Unfitness to practice Other failure or omission in proceedings to determine a complaint, application or allegation 35

36 Statement re open disclosure information and apology Health service provider prepares: STATEMENT IN WRITING The Procedure for making an open disclosure of a patient safety incident (psi) Incl restrictions on the use of information and the apology at the meeting, any further meeting and information received in a clarification, and any statements in writing re the meetings or clarifications 36

37 Making of Open disclosure of PSI Who is it made to? S.12 The patient concerned A relevant person Or both The patient concerned and A relevant person 37

38 Time of making Open Disclosure S.13 When health service provider believes it to be appropriate, having considered the PSI concerned S.14 Desirability of making Open Disclosure as soon as practicable notwithstanding: Some or all of likely consequences of Patient Safety Incident not present nor developed Health service provider does not have all of the info re patient safety incident available to it 38

39 Timing S 14 (2) (2) Having considered the appropriate time for the Open Disclosure of the patient safety incident the health service provider to make the Open Disclosure as soon as practicable taking into consideration of info/knowledge and consequences 39

40 s.15 Before making Open Disclosure of Patient Safety Incident Assess circs of patient and the nature of the PSI concerned Determine if OD of PSI to patient or relevant person or both of them Determine whether appropriate to make apology at the OD meeting If info presented clear a manner as possible 40

41 DESIGNATE Identify a designated person liaise HSP and Patient Inter- alia, An employee of the HSP A health practitioner An agency health practitioner.. TO LIAISE WITH HSP AND PATIENT As the designated person re the PSI concerned Designation in writing HSP Prepare statement in writing which is given asap after OD meeting 41

42 S.16 THE OPEN DISCLOSURE MEETING HSP Meet with patient or relevant person (or both) WHERE meeting not practicable - by telephone For OPEN DISCLOSURE MEETING When OD meeeting [of psi] the hsp provides the patient or relevant person with information hsp has in his possession at time of OD meeting 42

43 Information Provide orally Give patient or relevant person Copy of statement made in writing Deliver as soon as practicable after meeting Info: names of persons present Description of psi concerned Dates of psi Date of knowledge of psi came to notice of hsp 43

44 CONSEQUENCES Where physical/psychological consequences are present info re these consequences Or Whether physical/psychological consequences likely to develop Or whether physical/psychological consequences not likely to present after OD meeting Where at OD physical/psychological consequences present Hsp shall provide info re treatment and clinical care to address those consequences 44

45 STATEMENT S.16 (4) apology may be made at OD meeting Statement given in prescribed form Gives the relevant info re psi Contains the apology [if made] Statement signed by the principal health practitioner who made the OD of the psi on behalf hsp 45

46 REFUSAL BY PATIENT TO PARTICIPATE in OD OF PSI S.17 PATIENT/RELEVANT PERSON NOT FORCED TO ATTEND THE OD MEETING WHERE HSP PROPOSES HOLD OD MEETING PATIENT/RELEVANT PERSON TO INFORM HSP HE WILL NOT ATTEND OD MEETING DOES NOT WANT INFO PROVIDED OR ANY ADDITIONAL INFO/OR APOLOGY THE HSP MAKES A NOTE OF THAT REFUSAL MEETING DOES NOT GO AHEAD 46

47 S.18 PROVISION OF ADDITIONAL INFO AT ADDITIONAL INFO MEETING S.18 HSP MAY PROVIDE INFORMATION ADDITIONAL TO INFORMATION GIVE AT EARLIER MEETING NOT AVAILABLE TO THE HSP AT THE TIME OF THE MAKING OF THE OD OF THE PSI BUT HAS BECOME AVAILABLE AND HSP MAY MAKE AN APOLOGY [IF ANY] 47

48 ADDITIONAL INFORMATION MEETING ADDITIONAL INFO HSP TO ARRANGE METING RE THAT INFO GIVE PATIENT COPY OF STATEMENT IN WRITING OF ANY ADDITIONAL INFO HSP TO SIGN STATMENT 48

49 S.19 CLARIFICATION CLARIFICATION OF INFORMATION AT OD MEETING AND ADDITIONAL INFO PROVIDED AT ADDITIONAL INFO MEETING PATIENT MAY REQUEST CLARIFICATION ON INFO ON ADDITIONAL INFORMATION HSP TO PROVIDE IN SO FAR AS REASONABLY OPEN TO HIM LIAISE WITH DESIGNATED PERSON KEEP RECORDS 49

50 S 20 HSP MUST TAKE ALL STEPS REASONABLY OPEN TO HIM TO ESTABLISH CONTACT WITH PATIENT TO ARRANGE OD MEETING IF CANT MAKE CONTACT WITH PATIENT - TRY MAKE CONTACT WITH RELEVANT PERSON TO ARRANGE OD MEETING HSP TO SET OUT IN WRITING - THE STEPS TAKEN TO ESTABLISH CONTACT SIGN AND DATE STATEMENT KEEP IN RECORDS SPECIFIED IN S 21` 50

51 S21 KEEPING OF RECORDS HSP SHALL KEEP AND MAINTAIN RECORDS RE THE REFUSAL ANY DESIGNATION MADE ANY STATEMENTS MADE ANY REQUESTS FOR FURTHER INFO MINISTER MAY PRESCRIBE FORM AND MAINTENANCE OF RECORDS 51

52 Published 2017 Investigate rise in premiums estimated at 51% since

53 Interest in reducing costs DoFinance Working Group on Insurance Costs report Jan 2017 DoFinance Working Group Progress Report on Implementation May 2017 Hearings of the Finance Joint Oireachtas Committee - report Nov 2016 Legal Services Regulatory Authority Act Dec 2016 Personal Injuries Commission announced Jan 2017 Mediation Bill published Feb 2017 Review of Civil Courts system announced March 2017 Civil Liability Amendment Bill Payment Protection Orders Consumer Insurance Contracts Bill

54 Report 33 core proposals AIM To provide stability and fairer premiums for consumers 54

55 Working group No single policy or legislative silver bullet Insurance costs are a drag on our economic competitiveness The burden for reforming the insurance sector naturally rests with the industry Reform in the interests of the consumer and citizen Various stakeholders working together in a concerted manner Quarterly progress reports on implementation of 33 recommendations Initial focus on motor insurance then public liability and employer liability 55

56 Working Group (WG) opinions on rise in premiums Mandatory 3 rd party cover Under-pricing between 2010 and 2014 and ailing to consider potential future losses Increased claims inflation - WG concluded that average P.I compensation increased by 5% between 2013 and 2015 Reserving- the Central Bank Insurance Statistics has demonstrated that premiums have increased as a result of setting aside larger reserves for claims. 56

57 Working Group Opinions Court Jurisdictional Changes- insurers believe increases in jurisdiction have resulted in an inflation of awards High awards for Soft Tissue Injuries- insurance companies have argued that an inconsistent use of the Book of Quantum has provided for an increase in awards in comparison to other jurisdictions. 57

58 Working Group (WG) opinions on rise in premiums Issues re Costs opinions on rise in premium Working Group (WG) Civil Civil Liability (Amendment) Bill this legislation provides for Periodic Payment Orders which have lead to uncertainty around the likely future costs of catastrophic claims. Legal Challenges in relation to Setanta Insurance- there is an ongoing uncertainty in relation to the payment of Setanta claims. 58

59 Working Group (WG) opinions on rise in premiums Costs Discount Rate Since the decision in Gill Russell v- HSE there was a reduction in the discount rate from 3 percent to 1 percent causing an increase in premiums. 59

60 6 objectives of working group 1. Protecting the consumer information & communication 2. Improving data availability- database & metrics 3. Improve claims environment PIC [Personal Injuries Commission] 4. Reduce cost of process - pre-action protocols, BoQuantum, PIAB, litigation costs, PPOs 5. Reduce fraud & uninsured driving database, Gardai 6. Promote safety proof NCT/use of technology Telematics 60

61 6 Categories explored in Report 1. Protecting the Consumer Transparency in pricing premiums *Premium breakdown at quotation and renewal - monetary value of no claims discount 20 days to consider renewal notice Policy quotations for (returning) emigrants Transparency in settling claims 61

62 2. improving Data Availability Data collection - Database Emerging risks i.e. claims costs and trends Claim info to inform Book of Quantum Claim/policy holder info to be used to combat fraud OBJECTIVE accurate info to price premiums Register gather info on claim by claim basis 62

63 2. Improving data.. NATIONAL CLAIMS INFORMATION DATABASE IN FORM of ANNUAL REPORT 1) average gross earned premium 2) earned ultimate burning cost per policy.. burning cost. The ratio of incurred losses within a specified amount in excess of the theoretical amount of premium it would take only to cover losses. 3) The investment return received by each insurance undertaking for personal lines motor insurance on an average per policy basis and 4) The expenses of each insurance undertaking, split by commissions (e.g. brokerage costs) and non-commissions (e.g. employee costs, light & heat, rent, etc.) on an average per-policy basis. 63

64 3 Improving the Personal Injuries Claims Environment Personal Injuries Commission ESTABLISH A Personal Injuries Commission investigate the factors which are contributing to the upward trend of Personal Injuries ( PI ) awards. Members: medical profession, legal profession, representatives from the insurance sector and members of Government. 64

65 Claims Personal Injuries Commission will get Information from - three settlement channels in Ireland, the Courts Personal Injuries Assessment Board ( PIAB ) direct settlements. 65

66 3. Cont d estimated that PI claims make up 1% of claims on motor insurance policies annually however the costs of PI claims account for approximately three quarters of overall costs of claims W G assesses delivery costs such as solicitor s fees and costs of medical/engineering reports account for 40 percent of compensation costs outside of PIAB. Data from Insurance Ireland between 2013 and 2015 suggests a rise of 5 % in the average claimant award. 66

67 3. Cont d Models for assessing damages in other jurisdictions: The W G to examine other jurisdictions in relation to a scale of grading injuries. A grading scale would be beneficial particularly in terms of soft tissue injuries which can be difficult to diagnose. For example, in Sweden a classification system was introduced in 1995 known as the Whiplash Associated Disorder and classifies injuries from grades

68 4 Reducing the Costs in the Claim Process PIAB - maximisation of the PIAB process. Report: delivery costs equated to 44.2 percent in 2015 for cases assessed outside PIAB compared to the stable rate of 6.5 % for cases settled in PIAB. cost of expert medical/ engineering reports increased by 34 % between 2013 and

69 4. cont d Legal Services Regulation Act 2015: obligations on legal practitioners to set out a more detailed estimate of costs in the form of a Notice The Office of Legal Costs Adjudicators will replace the Taxing Master s Office adjudication can be sought from this office if client of the opinion that costs are excessive. 69

70 5. Reducing Insurance Fraud and Uninsured Driving Insurance Fraud Database: Insurance fraud is estimated by the insurance industry to cost 200 million a year which they claim adds approximately 50 to each policy. 70

71 5. Cont d The Working Group estimates that 50 percent of insurance fraud involves motor incidents. Database in place end

72 5. Cont d Call for a Review of Section 30 of Civil Liability and Courts Act 2004: which provides that a register of personal injuries actions is to be maintained by the courts service [not yet done] WG - collect PPSN OF CLAIMANTS Review to be carried out by Dept. of Justice Establish Uninsured Drivers Database: MIBI cost 50 m to 60 m p.a. approx 30 per premium 72

73 6. Promoting Road Safety /reducing crashes actions in respect of motor accidents cost the industry approximately 422 million in 2015 Reduce road crashes NCT promote rules of the Road Introduce Telematics in cars examine driving behaviour 73