Personal Injuries
Commission
SECOND AND FINAL REPORT OF THE
JULY 2018
SECOND AND FINAL REPORT OF THE
Personal Injuries
Commission
JULY 2018
1Second and Final Report of the Personal Injuries Commission
Table of Contents
FOREWORD 4
RECOMMENDATIONS 9
CHAPTER 1
INTRODUCTION AND TERMS OF REFERENCE 12
1.1 Introduction 12
1.2 Soft-Tissue ‘(Whiplash’) Injury 13
CHAPTER 2
BENCHMARKING OF INTERNATIONAL AWARDS FOR PERSONAL INJURY CLAIMS 15
2.1 Introduction 15
2.2 KPMG Report 16
CHAPTER 3
REPORT ON ALTERNATIVE COMPENSATION AND RESOLUTION MODELS 36
3.1 Introduction 36
3.2 United Kingdom 36
3.3 Canada 40
3.4 Australia 43
3.5 New Zealand 46
3.6 United States of America 47
3.7 Netherlands 49
3.8 Germany 51
3.9 France 53
3.10 Spain 55
3.11 Italy 56
3.12 Sweden 57
3.13 Conclusions 59
2
Table of Contents (continued)
CHAPTER 4
REPORT ON ‘CARE NOT CASH’ MODELS AND VARIATIONS IN PLACE INTERNATIONALLY 62
4.1 Introduction 62
4.2 Consideration of the Introduction of a ‘Care Not Cash’ Compensation System 62
4.3 Comparative Systems 62
4.4 Early Intervention to Obtain Optimum Outcomes 63
4.5 Conclusions on the Introduction of a ‘Care Not Cash’ Compensation System 63
4.6 Early Intervention and Rehabilitation 64
4.7 Recent Canadian Developments 64
4.8 Case Study: Tallaght Emergency Department Early Injury Rehabilitation Intervention Model 64
APPENDICES
Appendix 1: Membership and Secretariat of the PIC 67
Appendix 2: Meetings and Stakeholder Engagement 68
Appendix 3:
Update on the implementation of recommendations of the First Report of the Personal Injuries Commission
69
Appendix 4: Extract from Addendum to the Report of the Cost of Insurance Working Group on the Cost of Motor
Insurance on the subject of Telematics - January 2018 79
Appendix 5: Overview of Data Sought and Received 81
Appendix 6: Extracts and Examples of Tables 82
Appendix 7: Comparative tables on OECD Statistics on In ation (Consumer Price Index) and Gross Domestic Product
(GDP) from countries referred to in Chapter 3 - Report on Alternative Compensation and Resolution Models 86
3Second and Final Report of the Personal Injuries Commission
Foreword
4
Foreword
On behalf of the Members of the Personal Injuries Commission
(PIC), I present the second and nal report to the Minister for
Business, Enterprise and Innovation, Ms Heather Humphreys T.D.
and to the Minister of State with Special Responsibility for Financial
Services and Insurance, Mr Michael D’Arcy T.D.
The cost of insurance and the personal injury claims
environment in Ireland continues to attract signicant
attention from all sectors of society. The PIC was
established in January of 2017, and since then has been
engaged in delivering on its terms of reference with a
challenging 18-month work programme. The PIC has
undertaken extensive research and stakeholder
engagement publishing its rst report in December of
2017. This Final Report represents an amalgamation of the
second and third phases of the PIC’s scheduled work, and
deals in the main with the benchmarking of Irish personal
injury award levels, never previously undertaken to such
an extent, and an examination of alternative compensation
and resolution models in other countries and jurisdictions.
The report also includes an update on the implementation
of recommendations and related agreed third-party action
points from the PIC’s rst report.
As revealed by the benchmarking exercise undertaken by
the PIC, the level of general damages for soft-tissue
(‘whiplash’) injuries in this jurisdiction runs at a multiple
of 4.4 times to that of our nearest neighbours England and
Wales. While damages for personal injury in Ireland have
historically been greater than those in the UK, the multiple
which has now emerged, following an independent
verication process by KPMG of data supplied to PIC by
Insurance Ireland, is such as to conrm publicly expressed
concerns about such levels of award and the eect they
may be having on motorists and businesses who require
insurance cover. Representations made to the PIC since
its inception, by business representatives, small rms
associations and other entities, suggest that the level of
awards is causing severe diculties for them, not least in
the form of high premiums, but also in having to devote
resources to defend the high volume of claims they face.
First and foremost, the PIC acknowledges the need to
ensure that all genuinely injured claimants receive
adequate compensation. The PIC also recognises the
negative impact of high insurance premiums on
consumers. Individual consumers can face huge
diculties as they struggle to aord to pay their annual
premium. High motor insurance premiums can make
driving prohibitively expensive for certain groups of
consumers, such as younger or older drivers or returning
emigrants. In addition to negatively aecting consumers,
high motor insurance premiums can also impact
businesses and in turn undermine overall competitiveness.
These concerns have been detailed more fully in the
various reports of the Cost of Insurance Working Group
(CIWG), and in the First Report of the Personal Injuries
Commission. Insurance Ireland representatives on the PIC
have repeatedly stated that, as award levels and
associated costs account for the bulk of the cost of
insurance, if claims costs come down and are maintained
at a consistent and predictable level then premiums will
also reduce accordingly.
It is beyond the scope of this report to analyse in detail
why Irish payments and awards are higher than those in
the UK, however, it is acknowledged that this has
historically been the case, and the scale of the dierence
is now evidenced for the rst time. Verication of UK data
has been provided for the Ministry of Justice in the UK, for
a number of years, by the data analytics company Verisk,
and the PIC believes this verication has a high level of
reliability.
The PIC, under its terms of reference, sought and
obtained information of value from sources in other
jurisdictions regarding levels of personal injury
compensation to compare with Ireland. This information,
including where ‘thresholds’ apply, is detailed throughout
this report. The PIC has neither the resources nor the
facilities to apply the same level of scrutiny or verication
to which Irish data has been subjected, to other European
information. Independent consultants conrmed that the
European information supplied was not of a suciently
granular level to enable a meaningful comparison and
consequently it did not form part of the PIC’s
benchmarking exercise.
It goes without saying, that a primary aim of Government
policy is to ensure that Ireland is and remains a good
environment in which business can establish and operate.
Such considerations underpinned the establishment of the
Commercial Court in 2004, the success of which is widely
acknowledged. It is important for businesses to believe
that they can operate in a market which is untrammelled
by distortions or anomalies which are inimical to their
interests and survival. Excessively high awards and
fraudulent injury claims clearly fall into the category of
distortions or anomalies.
5Second and Final Report of the Personal Injuries Commission
The multiple which has emerged from the benchmarking
exercise is of such a magnitude, that the PIC is satised
that it calls for a response that is eective and achievable
in the shortest possible time. It is a response which, in the
form of a key recommendation arrived at in this report,
follows the example of judicial intervention which has
occurred in Northern Ireland and in the UK, namely the
introduction of Judicial Guidelines for judges. The history
of such guidelines goes back to 1992 in the UK where they
are now in their 14th iteration and to 1996 in Northern
Ireland where the 4th edition of Judicial Guidelines
appeared in 2013.
The PIC believes that the imminent statutory
establishment of the Irish Judicial Council provides a
unique opportunity to seek and obtain such guidance for
judges in measuring general damages for personal injury,
ranging from the least to the most serious. Recent
decisions in both the Court of Appeal and the High Court
indicate that there is no reluctance on the part of judges
to reconsider the spectrum of damages for dierent kinds
of personal injury and indeed a recent decision of the High
Court
1
is notable for its express attempts at ‘recalibrating’
general damages in the light of guidance provided by the
Court of Appeal. The PIC believes that the powers and
functions being granted in the legislation to the Judicial
Council clearly enable it to perform such a role.
Judicial Guidelines should lead to greatly increased levels
of consistency in awards, increase the frequency of early
resolution of claims, reduce costs and generally provide a
much better informed PIAB process, given that PIAB
compiles and reviews the Book of Quantum by reference
to awards in the courts. Representatives from both the
Law Society and the Bar Council have made it clear to the
PIC that this recommendation will have the full support of
both branches, to ensure that trial judges are briefed by
advocates on guideline gures in particular cases. The
PIC believes strongly that the legislation to establish the
Judicial Council should be given priority and that adequate
funding and resources are provided to enable it discharge
its various functions.
At the time of nalising this report, the PIC understands
that it is the intention of the Minister for Justice and
Equality that the legislation to establish the Judicial
Council will be enacted by the end of the year. In the event
of any delay to the establishment of the Judicial Council,
the PIC believes that as a contingency arrangement, the
Executive should establish a formal framework to enable
the judiciary to complete guidelines in advance of the
renewal deadlines for the Book of Quantum.
1 Jedruch -v- Tesco Ireland Ltd. [2018] IEHC 205
The PIC also considered but rejected the idea, at this
point, of seeking the advice of the Attorney General as to
the feasibility of introducing legislation to regulate levels
of compensation for soft-tissue (‘whiplash’) injuries. In
this regard, the PIC has noted that at Para 8.8 of its 2nd
Report, the CIWG expresses the view that legislation to
cap damages is a matter ”which would benet from
examination by the Law Reform Commission” and has
requested that body to undertake a detailed analysis of the
possibility of developing constitutionally sound legislation
to delimit or cap the amount of damages which a court
may award – at least in respect of some or all categories
of personal injuries. That referral having been made, the
PIC believes the Law Reform Commission is best
positioned and best resourced to advise further in this
regard. Any precipitate rush into legislation in response to
this report, at this juncture, would almost inevitably result
in court challenges to such legislation, resulting in further
and possibly indenite delay. The role of the Judiciary in
providing guidance regarding appropriate award levels is
of utmost importance, and the output of this exercise is
required as a matter of urgency. The PIC has recognised
that improving consistency and certainty in awards of
general damages is of paramount importance in improving
the overall claims environment, reducing claims costs and
exerting downward pressure on insurance premium
levels. The PIC acknowledges that the judiciary are the
correct source of guidance on the appropriate levels of
damages and are empowered in reaching their decisions
to take into account factors such as Court of Appeal
decisions and the output of this report.
In considering its recommendations, the PIC has examined
the personal injury claims environment in a holistic
manner. One of the recommendations in the PIC’s rst
report was the adoption by medical professionals of a
standardised approach to the examination of soft-tissue
(‘whiplash’) injuries and the use of a standardised
reporting template to bring more consistency to medical
reporting and diagnosis. During the PIC’s research and
consultation with members of the medical profession, the
case was made, and is supported by international
evidence, that early medical intervention and appropriate
treatment for claimants who sustain soft-tissue injuries
can reduce the duration of an injury and the level of
impairment. In order to enable claimants to obtain better
injury outcomes and reduce costs in the overall system,
the PIC has recommended the introduction of standard
treatment plans for those who sustain soft-tissue
(‘whiplash’) injuries. The PIC also recognises the value of
medical research in the prevention and management of
accidents and injuries and endorses the insurance
industry providing funding to enable research and
advancements in this area. The PIC is satised that it is
not possible to replace cash entirely with care, however
6
Foreword (continued)
the emphasis on care and the importance of accessing
same, can be increased by measures such as those
outlined.
The work of the PIC has highlighted a lack of award level
consistency and certainty as a key source of diculties
within the claims environment. Alongside
recommendations for the formulation of consistent
compensation levels, the PIC has recommended the
standardisation of medical assessment and treatment
plans for claimants. Analysis undertaken as part of the
benchmarking study has shown a lack of consistency in
the recording and coding of injury related data within the
insurance industry and the PIC believes improvements in
this area would enhance monitoring as regards the
frequency of and outcomes for injuries.
The PIC acknowledges that claimants injured in motor
accidents often sustain serious injuries and losses and the
object of this report is not to recommend the elimination
of a claimant’s right to be compensated for pain and
suering. However, the PIC has been presented with
validated evidence that Irish award levels for relatively
minor injuries particularly soft-tissue (‘whiplash’) injuries
are a stark multiple of awards in the UK for similar type
injuries. Indeed, it is noted that legislation currently being
introduced in the UK will seek to further reduce damages
for soft-tissue (‘whiplash’) injuries.
The PIC sees value in a requirement that where an injured
person intends to pursue a claim for compensation, that
person should give prompt notication of any intended
claim by means of a Claim Notication Form to the
proposed defendant or insurer to include the name of the
claimant’s treating medical specialist. This provides a
protection for both sides and may permit the early and
less costly disposal of the case. Indeed early notication
of a potential claim is essential if a defendant is to have a
realistic opportunity of undertaking an investigation of
circumstances surrounding the claim and is particularly
important in the context of soft-tissue (‘whiplash’) type
injuries. The PIC also recognises the importance of full
co-operation with the PIAB process as a means of
ensuring the prompt resolution of cases. In this regard the
PIC supports any new measures or legislative changes
which will improve the expeditious handling of claims by
PIAB.
The PIC, during the course of its work, received many
accounts from business sources to suggest that Ireland’s
present system of personal injury compensation permits,
not merely the bringing of claims in the hope of large
payments for small injuries, but also the resorting to fraud,
the exaggeration of minor injuries, and collusion in putting
forward fraudulent claims. The case was put repeatedly to
PIC that where awards are large, the investigation of
claims is poor and where little risk of prosecution follows
even when fraud is exposed, a perfect climate for abuse
of the system comes increasingly into play. The net result
is more claims and more cost.
By its very nature, fraud and exaggeration in this area are
dicult to measure or quantify and it is simply not
possible to produce hard evidence as to its extent.
Further, PIC is aware of increased sophistication in the
bringing of such claims by both individuals and groups,
some of whom are drawn to this jurisdiction by the high
rewards on oer. This phenomenon, increasingly revealed
in accounts of court cases in recent years, will increase in
a technological age, unless eective counter-measures
are adopted and implemented by both the State, An Garda
Síochána and insurers themselves.
Defensive technologies, such as telematics (eectively the
tting of a ‘black box’ in a motor vehicle – further
information is contained in appendices) and the
introduction of more nuanced forms of insurance cover to
provide for ‘black box’ cover, require detailed
consideration from insurers. Increased use of such
technology, along with the development of other
strategies, including the recruitment of additional sta to
investigate and expose fraud, may help turn the tide on
this problem. The PIC has also recommended as stated
already that a claimant who brings a claim must give early
notication thereof to a defendant or insurer, so as to
permit fair and proper investigation of a claim once made.
Valuable CCTV evidence may be lost when delays of many
months occur before a claim is notied.
In implementing telematics solutions obvious regard
should be had to Data Protection requirements and the
privacy rights of individuals. Additionally, such solutions
should not act as a constraint on the ability of consumers
to switch insurance providers when renewing policies.
7Second and Final Report of the Personal Injuries Commission
Irish society is presented now with an important
opportunity to consider an appropriate rebalancing and
recalibration of Irish awards, both in the context of their
relative values to each other and comparatively to other
jurisdictions. This is an opportunity to improve the
situation for consumers, business owners and society
without disproportionately restricting recourse to
compensation for genuine and seriously injured claimants.
In conclusion I would like to express my sincere thanks to
the Members of the PIC, the Secretariat and to all those
who have contributed to the work of the Commission. The
introduction of some real reform in the areas under
examination in this report is now an overarching concern.
With that requirement in mind, the PIC has put forward
straightforward Recommendations which are capable of
being acted upon in a very short time frame. The best
interests of our society require that there be no delay in
carrying them into e ect.
Nicholas J. Kearns
Chairperson
July 2018
8
Recommendations
9Second and Final Report of the Personal Injuries Commission
Recommendations
1. The PIC recommends that the Judicial Council should,
when established, be requested by the Minister for
Justice and Equality to compile guidelines for
appropriate general damages for various types of
personal injury. The PIC believes that the Judicial
Council will, in compiling the guidelines, take account
of the jurisprudence of the Court of Appeal, the
results of the PIC benchmarking exercise, the WAD
(Whiplash Associated Disorder scale as established
by the Quebec Task Force) scale and any other
factors it considers relevant. The Judicial Council, in
the production of the new guidelines, may avail of
assistance, as appropriate, from the Personal Injuries
Assessment Board (PIAB) and other relevant
stakeholders. The PIC recommends review of the
guidelines at regular intervals, for example, every
three years. As a starting point the PIC recommends
a judicial recalibration of the existing Book of
Quantum guidelines.
As a consequence of this recommendation,
subsequent legislative amendments to the Personal
Injuries Assessment Board Act 2003 will be required
in relation to the removal of PIAB’s statutory
responsibilty to compile the Book of Quantum and
also to the provision in the Civil Liability and Courts
Act 2004 which should be amended to state that ‘the
court shall, in assessing damages in a personal
injuries action, have regard to the guidelines
produced by the Judicial Council’.
The PIC believes this overall approach will achieve in
early course a greater level of consistency in Ireland
in the assessment of general damages.
In the event of any delay to the establishment of the
Judicial Council the PIC believes that as a
contingency arrangement the Executive should
establish a formal framework, inclusive of PIAB, to
enable the judiciary to complete guidelines in advance
of the renewal deadlines for the next Book of
Quantum.
2. The PIC recommends that the Judicial Council Bill
2017, establishing the Judicial Council, be progressed
through the Houses of the Oireachtas as a matter of
urgency.
3. The PIC notes that the Law Reform Commission has
been requested to undertake a detailed analysis of
the possibility of developing constitutionally sound
legislation to delimit or cap the amount of damages
which a court may award and believes it is the
appropriate body best equipped and resourced to
undertake this study. The PIC recommends that this
analysis is informed and assisted by the PIC’s
ndings.
4. The PIC is satis ed that a ‘care not cash’ system of
compensation for soft tissue injuries is incompatible
with EU Law. Having regard to the decision of the
CJEU in Petillo and Petillo v Unipol Assicurazioni
[2014] Case C – 371/12, it is not possible to replace
cash compensation awards entirely with care.
Possible schemes combining care and cash awards
would appear to add additional costs and di culties
to the claims environment, and accordingly, the PIC is
recommending such a system is inappropriate in an
Irish context. However, in respect of evidence heard
by the PIC of the bene cial e ects of early medical
intervention and treatment where soft tissue injuries
are sustained, the PIC recommends that any person
who sustains a soft tissue injury receive timely,
appropriate and e ective treatment as part of a
standardised treatment plan. Timely and e ective
treatment will improve patient outcomes and lead to
downward pressure on costs associated with soft
tissue injuries. In furtherance of this aim, the PIC
recommends the development and roll out, in all
relevant locations, of best practice ‘standard
treatment plans’ that focus on recovery, alongside
awareness and promotion of best treatment
practices.
5. The PIC recommends that in cases where an insurer
deals directly with a claimant, no o er in settlement
or payment of a personal injury claim should be made
unless and until a medical report has been obtained.
The medical report should detail the nature, extent
and prognosis of the injury. The PIC believes this to
be a prudent measure to protect the interests of
injured parties.
6. Claimants, for their part, must give prompt noti cation
of any potential injury claim so that a proper
investigation of the accident circumstances may be
undertaken by a defendant.
10
Recommendations (continued)
7. The PIC recognises that exaggerated and fraudulent
claims have an adverse impact on overall claims
costs which in turn impact insurance premium costs.
The PIC believes this issue needs to be addressed by
the development and deployment of suitable
strategies, including technological strategies, to
prevent and detect such activity. Fraudulent activities
currently carry a low risk of detection and an even
lower risk of prosecution and these are factors which
tend to foster and encourage the continuance of the
problem. The PIC has worked conjointly with the Cost
of Insurance Working Group established by the
Department of Finance on this issue, as fraud and
exaggeration overlap the work of each group. The PIC
supports recommendation 26 of the Cost of
Insurance Working Group Report on the Cost of Motor
Insurance, regarding the potential for further
cooperation between the Insurance Sector and An
Garda Síochána in relation to insurance fraud
investigation. The PIC recommends the establishment
of an Irish Garda Fraud Investigation Bureau along
the lines of the Insurance Fraud Enforcement
Department (IFED) in the UK, without further delay.
8. The PIC recommends that insurers step up their
anti-fraud capacity through the recruitment of
suitably trained personnel and the development of
various technological means of combating fraud.
Wherever possible, insurers should provide timely
information in relation to suspected fraud to An Garda
Síochána so that such cases can be investigated by
An Garda Síochána and where appropriate be the
subject of criminal prosecutions.
9. Research carried out by the PIC and independent
consultants has highlighted a lack of consistent and
detailed industry-wide coding of injury data.
Accordingly, the PIC recommends that insurers and
other relevant parties consider adopting the same
internationally recognised injury coding system. It is
suggested that the appropriate system to be used is
the World Health Organisation’s ICD-10 system. ICD is
the international standard for reporting diseases and
health conditions and the diagnostic classi cation
standard for all clinical and research purposes.
10. The PIC recommends that the insurance industry
establish a national medical research study on the
prevention and management of soft-tissue
(‘whiplash’) injuries. This research should be
published as a means of facilitating evidence based
improvements in approaches to treatment, informing
policy and delivering bene ts to consumers, business
and wider society.
11Second and Final Report of the Personal Injuries Commission
CHAPTER 1
Introduction and
Terms of Reference
12
Chapter 1: Introduction and Terms of Reference
1.1 Introduction
The terms of reference for Phase Two and Phase Three
of the Personal Injuries Commission are outlined below.
Phase Two (report due end Q1 2018)
l Establish a high-level benchmarking of international
awards for personal injury claims with domestic ones
as referred to in the Book of Quantum;
l Analyse and report on international compensation
levels and compensation mechanisms;
l Analyse and report on alternative compensation and
resolution models internationally, focusing on
common law systems while taking account of social
welfare, healthcare and related factors associated
with each jurisdiction;
l Report on ‘care not cash’ models and variations in
place internationally.
A summary report should be made to the Minister for
Business, Enterprise and Innovation and the Minister of
State for Financial Services which will:
l Assess the various systems in place and indicate the
feasibility or otherwise for the possible development
of such systems in Ireland;
l Indicate the timeframe for, benets of, and risk
associated with the implementation of the above
recommendations.
Phase Three (report due end Q2 2018)
The Third report from the Commission with a list of
recommendations and timelines should be delivered in Q2
2018.
In line with the PIC’s terms of reference this second and
nal PIC report is an amalgamation of the second and
third reports of the PIC as referenced above. The report
contains a foreword and a second set of key
recommendations.
The second chapter contains the results of the
benchmarking of international awards for personal injury
claims with domestic ones as referred to in the Book of
Quantum as completed by Independent consultants on
behalf of the PIC. This chapter benchmarks Irish awards
for soft-tissue (‘whiplash’) injuries against those of the
UK.
The third chapter of the report examines alternative
compensation and resolution models internationally,
focusing on common law systems but also considering the
systems in other European Union countries. The fourth
chapter is a report on ’care not cash’ models and
variations in place internationally.
The report concludes with various appendices, including
an update on the implementation of the recommendations
from the rst PIC report.
In addition to establishing the PIC, the Cost of Insurance
Working Group Report made a number of
recommendations in relation to strengthening the PIAB.
The Personal Injuries Assessment Board (Amendment)
(No.2) Bill 2018 addresses the recommendations in the
Cost on Insurance Working Group Report relating to cases
of non-cooperation, such as non–attendance at medicals
and refusal to provide details of special damages.
Action Point
No.
Action Point Deadline Relevant Bodies Lead/Owner
30 Establish a Personal Injuries Commission (PIC) Q1 2017
Department of
Business, Enterprise
and Innovation,
PIAB, Department of
Justice and Equality
Department of
Business,
Enterprise and
Innovation
31
PIC to investigate and make recommendations
on processes in other jurisdictions which
could enhance the claims process in Ireland
Q4 2017
32
PIC to benchmark international PI awards with
those in Ireland and report on alternative
compensation and resolution models
Q1 2018
33 PIC to deliver their third report Q2 2018
13Second and Final Report of the Personal Injuries Commission
1.2 Soft-Tissue (‘Whiplash’) Injury
As this report predominantly deals with soft-tissue
(‘whiplash’) injuries, it is important to outline the
interpretation of this injury by the PIC. The denition of a
’whiplash’ injury was referred to in the First Report of the
Personal Injuries Commission. As ‘whiplash’ is a slang or
colloquial term there is no ocial legal or medical
denition. For example, in France the slang term is ‘coup
du lapin’ which translates literally as rabbit’s punch or the
medical term is ‘les cervicalgies communes’ which
translates as common neck pain. In Germany the
colloquial term is ‘Schleudertrauma’ but the medical term
used is HWS-Distorsion (Halswirbelsaule-Distorsion),
translating as cervical spine distortion injury.
The Quebec Task Force adopted the following denition of
‘whiplash’;”an acceleration-deceleration mechanism of
energy transfer to the neck. It may result from motor
vehicle accidents. The impact may result in bony or soft
tissue injuries – whiplash injury, which in turn may lead to
a variety of clinical manifestations – whiplash associated
disorders”.
This denition is widely used internationally. The ‘South
Australian Clinical Guidelines for best practice
management to acute and chronic whiplash-associated
disorders’
2
referred to in the rst PIC report adopted the
denition provided by the QTF; “’Whiplash-associated
disorders (WAD) are caused by an acceleration-
deceleration mechanism of energy transfer to the neck.”
MedCo is a new system in the UK to facilitate the sourcing
of medical reports in soft- tissue injury claims brought
under the Ministry of Justice UK’s new Pre-Action
Protocol for Low Value Personal Injury Claims in Road
Trac Accidents. MedCo’s terms of reference advise they
handle claims – ‘brought by an occupant of a motor
vehicle where the signicant physical injury caused is a
soft tissue injury and includes claims where there is a
minor psychological injury secondary in signicance to the
physical injury’. Although MedCo is frequently referred to
as handling ‘whiplash’ claims, the remit of claims handled
by MedCo UK is broader than those termed ‘whiplash’
claims using the denition provided by the QTF and in
other jurisdictions. The denition of ’whiplash’ injuries to
be used when applying taris has yet to be agreed in the
UK parliament in their current debates on the Civil Liability
Bill.
2 Clinical Guidelines for the best practice management of acute
and chronic whiplash associated disorders: Clinical Resource
Guide. TRACsa: Trauma and Injury recovery South Australia,
Adelaide 2008
For clarication, the injury being discussed by PIC when
referring to soft-tissue (‘whiplash’) injuries in the report is
the majority international consensus and that used by the
QTF, i.e. a hyperextension exion injury of the cervical
spine.
It is recognised that it is very common for this type of
neck injury to co-occur with upper back or shoulder soft
tissue injuries. When reference is made to soft-tissue
(‘whiplash’) claims in this report they will include both
claims where the neck is the sole injury and claims where
the neck is the predominant injury but other injuries are
also present.
The medical template recommended in the rst PIC report
can be used for all injury cases including cases where a
neck injury is present in isolation or where additional
soft-tissue injuries are also present.
14
CHAPTER 2
Benchmarking of
International Awards For
Personal Injury Claims
15Second and Final Report of the Personal Injuries Commission
Chapter 2: Benchmarking of International Awards
For Personal Injury Claims
2.1 Introduction
As part of its terms of reference the PIC was required to
establish a high-level benchmarking of international
awards for personal injury claims with domestic ones as
referred to in the Book of Quantum.
The PIC wrote to a number of bodies and agencies to
obtain the data required to complete this exercise.
Correspondence was issued and received from Insurance
Ireland, various Irish embassies abroad, International law
societies, the Motor Insurers Bureau of Ireland, Enterprise
Rent-A-Car (ERAC), the Ministry of Justice in the United
Kingdom and the Association of British Insurers among
others. Unfortunately, the majority of those contacted
were unable to provide data of a suitable level of
granularity to complete the benchmarking exercise.
However, Insurance Ireland and the Ministry of Justice in
the UK, both supplied data of the standard required to
enable further analysis (a full list of contacts is included at
Appendix 2).
The Department of Business, Enterprise & Innovation, on
behalf of the PIC engaged independent consultants for the
Provision of Statistical and Actuarial Services to
undertake a Data Analysis Exercise to Benchmark
International Personal Injury Awards with those in Ireland.
The independent consultants were tasked with carrying
out a review and validation of an analysis of Irish motor
insurance bodily injury claims data provided to the PIC by
Insurance Ireland, and to undertake a comparative analysis
of this data against UK and potentially international data
provided to the PIC by the UK’s Ministry of Justice and
Insurance Ireland respectively.
This is the rst time that an exercise of this nature has
been completed and independently validated. The PIC
determined that it was appropriate to cap the claims
included in the analysis at €50,000. The PIC reached this
decision as the report showed that depending on the
company, between 92% and 98% of all claims settle for
less than €50,000. When capped at this gure the results
indicate that soft tissue injury claim costs are
approximately 4.4 times that of the UK cost (the claims in
the data set are inclusive of psychological injury).
The report of the independent consultants engaged
(KPMG) follows.
16
Chapter 2: Benchmarking of International Awards For
Personal Injury Claims (continued)
2.2 KPMG Benchmarking Report
Contents
1. Processes and procedures
2. Summary ndings
3. Limitations and assumptions
4. Appendix 1 – Results by company
5. Appendix 2 – Results by claims duration
6. Appendix 3 – Data by company
7. Appendix 4 – Sensitivity
1 Processes and procedures
1.1 Background
In November 2017 Insurance Ireland sent a data request
to the eight largest motor insurers operating in the
country. Insurance Ireland requested summary
information on both soft tissue and non-soft tissue claims
for all motor exposure for years 2015 to 2017. Claims cost
information requested was for general damages only i.e.
legal costs and special damages are excluded.
The data request included a form to be completed, where
the information could be summarised by age of claim,
settlement year and payment band.
Insurance Ireland reviewed data submitted and
determined that two of the companies should be excluded
from the analysis, on the basis that these companies were
unable to provide data suciently in line with the
requested split. The remaining data represented 81% of
the Insurance Ireland motor market in 2016 GWP terms.
Insurance Ireland provided results, on an aggregated
basis, to the Personal Injuries Commission (PIC) by
settlement year, settlement band and claims duration.
1.2 Our Scope
We have been engaged by the Department of Business,
Enterprise and Innovation, on behalf of the PIC to review
the data provided by Insurance Ireland and carry out a
benchmarking exercise against UK soft tissues claims
experience.
The scope of our engagement was as follows.
l Review and validate Irish soft tissue motor insurance
personal injury claims data provided to the PIC by
Insurance Ireland:
l Review the data format to conrm that the data is t
for the purpose of the exercise;
l Conrm that data supplied by Insurance Ireland is in a
similar and standardised format and that it has been
interpreted the same way by each company;
l Conrm that data supplied has been certied
appropriately for each company i.e. certication
process meets appropriate industry standards;
l Review any caveats placed on the data by any of the
companies and if required clarify these limitations
directly with the companies concerned;
l If considered appropriate, carry out a consistency test
between the data supplied by each of the companies
(if access can be provided and is required to the raw
data). In view of the commercial sensitivity of the
data supplied by each company to Insurance Ireland
the PIC is in receipt of aggregated data only and this
is what will ultimately be published. Discussions will
be required with Insurance Ireland to gain access to
individual company data for the purposes of the
validation exercise only. If the data cannot be
accessed the Tenderer is required to notify the
Department of Business, Enterprise and Innovation.
l Undertake a comparative analysis of this data against
similar UK motor insurance personal injury claims
data provided to the PIC by the UK’s Ministry of
Justice.
1.3 Our Process
l We reviewed all Irish and international data provided
to us by the PIC. The European data was supplied by
one individual insurer and aggregated by claim size
band. We concluded that we would not be able to
make any meaningful comparisons to the European
data (excluding UK) as this information was not
provided or available at a suciently granular level.
Furthermore, we did not consider it appropriate to
include the European data in our benchmarking
exercise as it would be based on one single insurer
only.
l We requested and received the individual company
claims data underlying the aggregated data provided
by Insurance Ireland to the PIC.
l We carried out a desk-top review of data provided to
us to identify consistency between companies and
across settlement years and claims duration. This
allowed us to identify outliers and focus our
discussions on data provided by individual companies.
17Second and Final Report of the Personal Injuries Commission
l We discussed data provided and the process for
extracting this data with each individual company.
These discussions included but were not limited to
the following topics:
— Injury denitions used to split the claims
between soft tissue and non-soft tissue;
— Claim settlement dates used;
— Whether the payment amount covered general
damages only or if it also included any special
awards;
— Whether the amounts were at claimant or claim
level;
— Whether all motor exposure was included in the
data;
— Any cohorts of the claims excluded from the
extract; and
— The process carried out by the company to
validate the claims information submitted to
Insurance Ireland.
l We met with Insurance Ireland to discuss their
process used to aggregate the claims data and
reasons for any exclusions.
1.4 Validation
l Distribution of claims was reviewed for consistency
between companies. We checked for consistency at
an overall level and by duration to settlement.
— Company D had a higher proportion of smaller
claims, particularly as the time to settlement
increased. Based on our conversation with
company D we understand that this company
extracted minor soft tissue injury claims. Other
companies did not lter claims provided to us
based on the severity of the injury. Following a
discussion with the Company D, they provided a
revised data set which did not restrict the data
based on severity of claim and therefore we have
included it in our analysis.
— Company C had a higher proportion of smaller
claims for all claims settled within one year. This
company was unable to identify injury type and
data provided includes all injury types i.e. soft
issue and non-soft tissue. We have excluded this
company from our analysis.
l We compared claims distributions against the data
provided by the Personal Injuries Assessment Board
(PIAB). While the PIAB data covers all motor awards
we believe it provides a useful sense check on the
industry claims distribution.
l For each company we compared claims volume to
market share based on their motor Gross Written
Premium from the Insurance Ireland fact les for
2014, 2015 and 2016. There were two outliers where
the number of claims submitted was noticeably
dierent to market share. Company E does not record
claims at a claimant level and claims involving more
than one claimant were excluded from data submitted
to Insurance Ireland. Company G claims volumes are
higher than we would expect. We have discussed this
issue with Company G and they were unable to
explain why the volume of claims was higher than
expected, other than to note that it may be due to the
inconsistencies in denition of a soft tissue injury.
Excluding Company G from our analysis would
increase the average from €19,862 to €20,730. The
distribution of claims is broadly consistent with peers
and therefore we have decided to keep Company G in
our analysis.
l Where the companies provided both soft tissue and
non-soft tissue claims information, we have
compared proportion of soft tissue claims as a
portion of the total injury claims by company. For four
companies where this information was available soft
tissue claims made up on average 77% of the total
injury claims. For company G the soft tissue claims
made up 93% of claims submitted, which is higher
than we would have expected.
1.5 Our exclusions and data adjustments
l While Company B validation checks did not identify
any issues with data provided we note that claims
denition used included ’unknown‘ claim types some
of which we identied as being non-injury type
claims. We have excluded this company from our
analysis.
l Three companies included in the benchmarking
exercise were unable to split special damages from
general damages. We adjusted for this potential
overstatement by reducing soft tissue claims cost.
The adjustment was based on the proportion of the
total payments attributed to special damages provided
by PIAB. This adjustment is made by claim size i.e.
the average portion of the claims attributable to
special damages is 3% for losses of between €5k and
€10k, increasing to 11% where the losses are
between €40k and €50k.
l We have limited our analysis to claims between €1k
and €100k, on the basis that some of the insurance
companies had already excluded payments outside of
this range. In addition, any particularly large claims
could distort the results.
18
Chapter 2: Benchmarking of International Awards For
Personal Injury Claims (continued)
2 Summary Findings
2.1 Summary of Results
In this section we present our results and the impact of various assumptions on the average soft tissue injury claim
cost. One of the key assumptions in our analysis is the upper bound on claims to be included in calculating the
average claims cost. The starting point for our analysis includes all claims between €1,000 and €100,000. The
appropriateness of all assumptions was discussed at a PIC workshop. We note that following the workshop the
membership of the PIC determined that it would be more appropriate to cap the claims included in the analysis at
€50,000, as set out in section 2.2.1 below.
Our results, at a high level, indicate that soft tissue injury claim costs in Ireland are approximately 5.0 times that of
the UK cost (including psychological injury). Note that this comparison is based on Irish claims data capped at
€100,000 per claimant. The PIC determined that it would be more appropriate to cap the claims included in the
analysis at €50,000, when capped at this gure, the results indicate, that soft tissue injury claim costs are
approximately 4.4 times that of the UK cost (including psychological injury).
Average between €1k and €100k
Company All Claims Less than 1 year 1 - 2 years 2 - 3 years 3 - 4 years 4+ years
A 20,608 12,234 19,002 24,020 27,889 29,846
B 16,840 11,273 17,451 22,658 23,573 35,294
C 18,520 9,445 17,813 22,049 25,770 24,880
D 20,701 10,666 17,322 21,209 26,576 33,876
E 18,033 10,486 17,078 21,819 22,646 29,394
F 23,189 11,538 19,230 25,396 31,388 37,899
G 18,613 11,037 17,229 21,731 25,164 30,692
H 18,893 12,872 21,326 26,118 32,382 29,300
Total 19,427 11,173 18,359 22,892 26,823 30,086
Total (ex B & C) 19,862 11,635 18,560 23,110 27,237 32,795
The table shows the average claim cost at an overall and company level by claims duration and all durations combined.
These averages are based on data provided by individual companies adjusted by KPMG, where necessary, to remove
Special Damages and remove claims of less than €1,000 and greater than €100,000.
The total average claims severity amounts are shown including all companies and excluding particular companies where
we consider data to be unsuitable for benchmarking purposes.
Average between €1k and €100k
Year All Claims
2015 18,973
2016 19,904
2017 20,826
Overall Average (Ireland) 19,862
UK (with psych) (adj for ination) 3,984
UK (without psych) (adj for ination) 3,612
Overall Average (UK) 3,798
The table shows the average settlement amounts in the UK which are based on analysis carried out by Verisk in 2016 for
the UK Ministry of Justice. This table also includes average claim cost by settlement year for Ireland.
19Second and Final Report of the Personal Injuries Commission
0.0%
20.0%
40.0%
60.0%
80.0%
100.0%
120.0%
2,000
5,000
8,000
11,000
14,000
17,000
20,000
23,000
26,000
29,000
32,000
35,000
38,000
41,000
44,000
47,000
50,000
53,000
56,000
59,000
62,000
65,000
68,000
71,000
74,000
77,000
80,000
83,000
86,000
89,000
92,000
95,000
98,000
Proportion of claims paid below each amount
€
All claims between €1k and €100k
A
B
C
D
E
F
G
H
PIAB
UK Soft tissue without psych
UK Soft tissue with psych
The chart shows the distribution, for all durations combined, by company. Data underlying the chart is consistent with
that used to calculate averages in above tables. We also show distribution of UK claims and PIAB settlement costs.
The red line at the €50,000 mark shows that, depending on the company, between 92% and 98% of all claims settle for
less than €50,000. The light blue line shows that between 72% and 83% of all claims settle for less than €25,000.
2.2 Details of the assumptions, reliances, limitations and sensitivities.
Our analysis shows that the average soft tissue claims cost in Ireland is €19,862, based on claims paid in 2015, 2016 and
2017.
The average soft tissue injury claims severity in the UK for the period January 2012 to December 2015 was €3,589 and
€3,254 with and without psychological damages respectively before adjustment for ination. These gures are based on
the analyses performed by Verisk during 2016 for the UK Ministry of Justice converted at exchange rate of 1 GBP = 1.22
EURO. Adjusting the UK data for the dierence in settlement dates increased the average soft tissue injury claims
severity in the UK to €3,984 and €3,612 with and without psychological damages.
Our results therefore indicate that at a high level soft tissue injury claim costs in Ireland are approximately 5.0 times that
of the UK costs (incl. psych) however, this is based on Irish claims data capped at €100,000 per claimant. The PIC
determined that it would be more appropriate to cap the claims included in the analysis at €50,000, when capped at this
gure, the results indicate, that soft tissue injury claim costs are approximately 4.4 times that of the UK cost (incl. psych).
We have identied and quantied the key limitations and assumptions impacting this benchmarking exercise including:
2.2.1 Maximum and minimum soft tissue injury severity
Our results are based on general damage amounts of between €1k and €100k. We have excluded payments outside of
this range: some company data is limited to this range; claims outside this range are unlikely to be in respect of soft tissue
injury; and to ensure results are not distorted by a few excessively large payments.
Reducing the upper range of soft tissue injury claims cost to €50k and €25k reduced our overall average amounts to
€17,338 and €13,336 respectively. The overall comparisons in these scenarios are claim costs in Ireland of approximately
4.4 and 3.3 times that of the UK costs (incl. psych).
2.2.2 Consistency of settlement periods and soft tissue injury claims severity ination
We have not adjusted the Irish payment data for ination. However, we note that the average claims severity increased
from €18,973 in 2015 to €19,904 in 2016, and again to €20,826 in 2017 implying an annual ination rate of approximately
4%.
20
Chapter 2: Benchmarking of International Awards For
Personal Injury Claims (continued)
The mid-point of settlement periods for the Irish and UK studies are approximately June 2016 and December 2013
respectively. The average claim settled through the UK claims portal increased by 11% between December 2013 and June
2016. We have used this ination rate to adjust the UK claims data for the dierence in average settlement date. This
increased the average soft tissue injury claims severity in the UK to €3,984 and €3,612 with and without psychological
damages.
2.2.3 Our adjustment for special damages
We applied our judgement to adjust claims cost downwards for two companies that were unable to split special damages
from general damages payments provided to us. This adjustment is informed by data provided by PIAB and varies by
claim size
3
.
This adjustment has not materially impacted our results. Increasing the adjustment additively by 5% and 10% results in
multiples of UK costs (incl. psych) of 4.92 and 4.85 respectively.
2.2.4 Exchange rates
Exchange rates varied signicantly over the investigation period 2015-2017 and we used a simple average of year-end
2015, 2016 and 2017 exchange rates. The level of Irish claims versus UK varies from 4.5 to 5.4 using 31 December 2015
and 31 December 2017 exchange rates respectively.
3 PIAB data was used to calculate typical ratios between General Damages and Special Damages for dierent award level bands. Data
from over 20,000 PIAB awards, incorporating all motor cases assessed over the period 2015-2017, each of which list General
Damages and Special Damages separately, was used as an indicator of the approximate numerical relationship between the two sets
of damages.
21Second and Final Report of the Personal Injuries Commission
3 Limitations and assumptions
3.1 Reliances and Limitations
We have made use of the best data currently available, assessed consistency between data of Irish companies, included/
excluded data and attempted to quantify any limitations that we have identied.
We do note that the denition of soft tissue injury (‘whiplash’) losses is constantly developing and is not consistent
between Irish companies, between Ireland and the UK jurisdiction and between successive UK soft tissue analyses. We
recommend that the Irish analyses and benchmarking exercise be repeated at regular intervals as denitions are rened
and underlying claims experience evolves.
l Our validation process relies on a desk top review of data provided and enquiry based approach with each individual
company.
l As the claims data relates to only a subset of claims, we have not been able to check that the claim payments
reconcile back to audited nancial statements or regulatory returns.
l For each company an injury code is allocated to claims based on the most dominant or severe injury and is generally
set when the claim is rst reported. Where a claimant has multiple injuries, the data includes the payment made for
all injuries rather than just the soft tissue injury element. This may result in average costs of soft tissue injury being
overstated.
l The data is based on the payment made by each insurer. Where an insurer is only partially liable the data for that
insurer will only include the portion of the payment paid by that insurer. This may result in the average cost of soft
tissue injury being understated.
l The injury code is subject to human error as it is manually set by the claims handler.
l General damages provided to us include psychological damages, where present. Companies were however not able
to identify which claims had a psychological damage element or, where present, the cost of these awards.
l In some cases, the data includes particularly large payment amounts. Based on our discussions with the insurance
companies we understand that these may be due to a combination of factors, such as incorrect injury code, multiple
injuries where soft tissue damage is just one component, a soft tissue claim which has deteriorated or a large
special damages award. Some companies have capped the individual claims at €100k as it is unlikely that a soft
tissue injury would lead to such a high award and could distort the benchmarking exercise.
l We have also discussed the particularly low value claims in the data, such as those less than €1000. These may be
due to cases where the claimant was paid a nominal amount for damages but may have been paid a larger amount
for vehicle damage. The payment could also have been misclassied as general damages instead of legal expenses
or the injury code could be incorrect.
l The UK soft tissue injury claims data covers settlements between January 2012 and December 2015 and is therefore
inconsistent with settlement period of Irish data. We have adjusted the UK data for claims ination using the
movement in average claim settled through the UK claims portal between December 2013 (average UK settlement
date) and June 2016 (average Irish settlement date).
22
Chapter 2: Benchmarking of International Awards For
Personal Injury Claims (continued)
4 Results by Company
4.1 Company A
Proportion of claims paid below each amount
Company A
€
0.0%
20.0%
40.0%
60.0%
80.0%
100.0%
120.0%
2,000
5,000
8,000
11,000
14,000
17,000
20,000
23,000
26,000
29,000
32,000
35,000
38,000
41,000
44,000
47,000
50,000
53,000
56,000
59,000
62,000
65,000
68,000
71,000
74,000
77,000
80,000
83,000
86,000
89,000
92,000
95,000
98,000
A
B
C
D
E
F
G
H
PIAB
UK Soft tissue without psych
UK Soft tissue with psych
4.2 Company B
Proportion of claims paid below each amount
Company B
€
0.0%
20.0%
40.0%
60.0%
80.0%
100.0%
120.0%
2,000
5,000
8,000
11,000
14,000
17,000
20,000
23,000
26,000
29,000
32,000
35,000
38,000
41,000
44,000
47,000
50,000
53,000
56,000
59,000
62,000
65,000
68,000
71,000
74,000
77,000
80,000
83,000
86,000
89,000
92,000
95,000
98,000
A
B
C
D
E
F
G
H
PIAB
UK Soft tissue without psych
UK Soft tissue with psych
23Second and Final Report of the Personal Injuries Commission
4.3 Company C
Proportion of claims paid below each amount
Company C
€
0.0%
20.0%
40.0%
60.0%
80.0%
100.0%
120.0%
2,000
5,000
8,000
11,000
14,000
17,000
20,000
23,000
26,000
29,000
32,000
35,000
38,000
41,000
44,000
47,000
50,000
53,000
56,000
59,000
62,000
65,000
68,000
71,000
74,000
77,000
80,000
83,000
86,000
89,000
92,000
95,000
98,000
A
B
C
D
E
F
G
H
PIAB
UK Soft tissue without psych
UK Soft tissue with psych
4.4 Company D
Proportion of claims paid below each amount
Company D
€
0.0%
20.0%
40.0%
60.0%
80.0%
100.0%
120.0%
2,000
5,000
8,000
11,000
14,000
17,000
20,000
23,000
26,000
29,000
32,000
35,000
38,000
41,000
44,000
47,000
50,000
53,000
56,000
59,000
62,000
65,000
68,000
71,000
74,000
77,000
80,000
83,000
86,000
89,000
92,000
95,000
98,000
A
B
C
D
E
F
G
H
PIAB
UK Soft tissue without psych
UK Soft tissue with psych
24
Chapter 2: Benchmarking of International Awards For
Personal Injury Claims (continued)
4.5 Company E
Proportion of claims paid below each amount
Company E
€
0.0%
20.0%
40.0%
60.0%
80.0%
100.0%
120.0%
2,000
5,000
8,000
11,000
14,000
17,000
20,000
23,000
26,000
29,000
32,000
35,000
38,000
41,000
44,000
47,000
50,000
53,000
56,000
59,000
62,000
65,000
68,000
71,000
74,000
77,000
80,000
83,000
86,000
89,000
92,000
95,000
98,000
A
B
C
D
E
F
G
H
PIAB
UK Soft tissue without psych
UK Soft tissue with psych
4.6 Company F
Proportion of claims paid below each amount
Company F
€
0.0%
20.0%
40.0%
60.0%
80.0%
100.0%
120.0%
2,000
5,000
8,000
11,000
14,000
17,000
20,000
23,000
26,000
29,000
32,000
35,000
38,000
41,000
44,000
47,000
50,000
53,000
56,000
59,000
62,000
65,000
68,000
71,000
74,000
77,000
80,000
83,000
86,000
89,000
92,000
95,000
98,000
A
B
C
D
E
F
G
H
PIAB
UK Soft tissue without psych
UK Soft tissue with psych
25Second and Final Report of the Personal Injuries Commission
4.7 Company G
Proportion of claims paid below each amount
Company G
0.0%
20.0%
40.0%
60.0%
80.0%
100.0%
120.0%
2,000
5,000
8,000
11,000
14,000
17,000
20,000
23,000
26,000
29,000
32,000
35,000
38,000
41,000
44,000
47,000
50,000
53,000
56,000
59,000
62,000
65,000
68,000
71,000
74,000
77,000
80,000
83,000
86,000
89,000
92,000
95,000
98,000
A
B
C
D
E
F
G
H
PIAB
UK Soft tissue without psych
UK Soft tissue with psych
€
4.8 Company H
Proportion of claims paid below each amount
Company H
€
0.0%
20.0%
40.0%
60.0%
80.0%
100.0%
120.0%
2,000
5,000
8,000
11,000
14,000
17,000
20,000
23,000
26,000
29,000
32,000
35,000
38,000
41,000
44,000
47,000
50,000
53,000
56,000
59,000
62,000
65,000
68,000
71,000
74,000
77,000
80,000
83,000
86,000
89,000
92,000
95,000
98,000
A
B
C
D
E
F
G
H
PIAB
UK Soft tissue without psych
UK Soft tissue with psych
26
Chapter 2: Benchmarking of International Awards For
Personal Injury Claims (continued)
5 Results by claims duration
5.1 All claims between €1k and €100k (less than one year)
Proportion of claims paid below each amount
€
0.0%
20.0%
40.0%
60.0%
80.0%
100.0%
120.0%
2,000
5,000
8,000
11,000
14,000
17,000
20,000
23,000
26,000
29,000
32,000
35,000
38,000
41,000
44,000
47,000
50,000
53,000
56,000
59,000
62,000
65,000
68,000
71,000
74,000
77,000
80,000
83,000
86,000
89,000
92,000
95,000
98,000
A B C
D E F
G H
All claims between €1k and €100k (less than one year)
5.2 All claims between €1k and €100k (1 - 2 years)
Proportion of claims paid below each amount
€
All claims between €1k and €100k (1 to 2 years)
0.0%
20.0%
40.0%
60.0%
80.0%
100.0%
120.0%
2,000
5,000
8,000
11,000
14,000
17,000
20,000
23,000
26,000
29,000
32,000
35,000
38,000
41,000
44,000
47,000
50,000
53,000
56,000
59,000
62,000
65,000
68,000
71,000
74,000
77,000
80,000
83,000
86,000
89,000
92,000
95,000
98,000
A B C D
E F G H
27Second and Final Report of the Personal Injuries Commission
5.3 All claims between €1k and €100k (2 - 3 years)
Proportion of claims paid below each amount
€
All claims between €1k and €100k (2 to 3 years)
0.0%
20.0%
40.0%
60.0%
80.0%
100.0%
120.0%
2,000
5,000
8,000
11,000
14,000
17,000
20,000
23,000
26,000
29,000
32,000
35,000
38,000
41,000
44,000
47,000
50,000
53,000
56,000
59,000
62,000
65,000
68,000
71,000
74,000
77,000
80,000
83,000
86,000
89,000
92,000
95,000
98,000
A B C
D E F
G H
5.4 All claims between €1k and €100k (3 - 4 years)
Proportion of claims paid below each amount
€
All claims between €1k and €100k (3 to 4 years)
0.0%
20.0%
40.0%
60.0%
80.0%
100.0%
120.0%
2,000
5,000
8,000
11,000
14,000
17,000
20,000
23,000
26,000
29,000
32,000
35,000
38,000
41,000
44,000
47,000
50,000
53,000
56,000
59,000
62,000
65,000
68,000
71,000
74,000
77,000
80,000
83,000
86,000
89,000
92,000
95,000
98,000
A
B
C
D
E
F
G
H
28
Chapter 2: Benchmarking of International Awards For
Personal Injury Claims (continued)
5.5 All claims between €1k and €100k (4+ years)
Proportion of claims paid below each amount
€
All claims between €1k and €100k (4+ years)
0.0%
20.0%
40.0%
60.0%
80.0%
100.0%
120.0%
2,000
5,000
8,000
11,000
14,000
17,000
20,000
23,000
26,000
29,000
32,000
35,000
38,000
41,000
44,000
47,000
50,000
53,000
56,000
59,000
62,000
65,000
68,000
71,000
74,000
77,000
80,000
83,000
86,000
89,000
92,000
95,000
98,000
A B C
D E F
G H
29Second and Final Report of the Personal Injuries Commission
6 Data by Company
6.1 Company A
Company A
Claims settlement dates 1 January 2015 - 22 November 2017
Injury denition The data includes all soft tissue claims.
Heads of damage included General damages & special damages
Claimant level information? Yes
Motor class included All motor classes
Exclusions based on amount Nil claims excluded.
Completeness No cohorts of claims were excluded.
Checks completed A sample of claims was compared back to the front end system to ensure the data
had been extracted properly.
6.2 Company B
Company B
Claims settlement dates 1 January 2015 – 17 November 2017
Injury denition The data includes all claims where the anatomy description is neck, the claim type
is soft tissue or the claim type is unknown with a payment amount between €100
and €100k.
Heads of damage included General damages & special damages
Claimant level information? Yes
Motor class included All motor classes.
Exclusions based on amount “Unknown” claims capped at €100k, nil claims excluded.
Completeness
Checks completed Checked that payments in claims system reconciled with nancial system and
found that 98% of data reconciliated. There was also a high level review done by
the claims manager.
6.3 Company C
Company C
Claims settlement dates
Injury denition The data includes all injury claims.
Heads of damage included General damages only
Claimant level information? Yes
Motor class included All motor classes.
Exclusions based on amount
Completeness
Checks completed A sample of claims for each cohort was checked back against the core nancial
system. Reasonableness checks were also carried out.
30
Chapter 2: Benchmarking of International Awards For
Personal Injury Claims (continued)
6.4 Company D
Company D
Claims settlement dates
Injury denition The claims are based on a number of dierent back, neck and soft tissue injury
codes. There is no restriction on the severity of the claim.
Heads of damage included General damages & special damages
Claimant level information? Yes
Motor class included All motor classes included
Exclusions based on amount Nil claims were excluded
Completeness Circa 16% of the total Motor claimants from 2015 to 2017 were tagged with an
unknown injury code as these are handled by a delegated authority
Checks completed Validation and accuracy of the data sense checked with the data owner and internal
management. This included issue resolution for areas such as recoveries, RBAs,
proxy settlement dates. Internal sign-o of submission. No reconciliation was
required as the data utilized for the submission was directly extracted from the
operating system that houses all payments/reserves for claim les, and
reconciliations occur at a company level on this system.
6.5 Company E
Company E
Claims settlement dates 1 January 2015 – 27 September 2017
Injury denition The data includes all claims where the injury is coded as “Neck/Whiplash” as an
approximation for soft tissue injury as this injury code is not recorded. The awards
were capped at €100k.
Heads of damage included General damages & special damages
Claimant level information? Yes
Motor class included All motor classes.
Exclusions based on amount Only includes claims with total payment greater than €10 and where less than
€100k was incurred.
Completeness Excludes any MIBI related claims. Only includes single claimant claims. In cases
where were multiple claimants, the settlements cannot be split by claimant.
Checks completed The data was checked at a high level with reasonableness checks by actuarial and
the CFO. There were also sense checks carried out on any particularly large claims.
6.6 Company F
Company F
Claims settlement dates 1 January 2015 - 31 October 2017
Injury denition All claims where the injury code was soft tissue. Body part impacted is not
recorded on the system.
Heads of damage included General damages only
Claimant level information? Yes
Motor class included
Exclusions based on amount Nil claims were excluded.
Completeness
Checks completed The data was extracted by the MI team. Sample of around 150 claims reviewed by
operations team to ensure it was correct.
31Second and Final Report of the Personal Injuries Commission
6.7 Company G
Company G
Claims settlement dates 1 January 2015 – 31 October 2017
Injury denition The data includes all claims coded as whiplash or soft tissue (not specic to any
body part).
Heads of damage included General damages only
Claimant level information Yes
Motor class included All motor classes included
Exclusions based on amount Included all claimant entries where a payment was made. If the claim opened and
closed at nil, then the claim was excluded.
Completeness No claims were excluded.
Checks completed
6.8 Company H
Company H
Claims settlement dates 1 January 2015 - 31 October 2017
Injury denition Injury codes are based on Book of Quantum. Data includes any claims coded as
“whiplash” and “other soft tissue injuries to neck and back”.
Heads of damage included General damages only
Claimant level information? Yes
Motor class included All motor classes
Exclusions based on amount
Completeness Claims were extracted from a separate database than the nancial database used
for reserving. Only 70% of claims reconciled with the nancial database.
Checks completed Ongoing
32
Chapter 2: Benchmarking of International Awards For
Personal Injury Claims (continued)
7 Sensitivity
7.1 Impact of varying the range of claims included
l We have limited the claims included in our analysis to those with a payment between €1k and €100k, as some
companies excluded claims outside of this range. We also believe that soft tissue claim payments outside of this
range are relatively rare. In order to assess the impact of this upper bound on our overall ndings, we have tested
the impact on the average claim payment of reducing the cap to €50k and €25k.
l The results below show that the upper bound on soft tissue claims included in the analysis has a material impact on
the average claim payment. When we reduce the upper bound to €50k, the average claim payment reduces from
€19,862 to €17,338. This is a 13% reduction in the average claim payment. Reducing the cap from €100k to €50k
reduces the number of claims included in the analysis by 5%.
l When we reduce the upper bound to €25k, the average claim payment reduces from €19,862 to €13,336. This is a
33% reduction in the average claim payment. Reducing the cap from €100k to €25k reduces the number of claims
included in the analysis by 22%.
Impact of capping claims
Company Original - all claims
between €1k and €100k
Claims between
€1k and €50k
Claims between
€1k and €25k
A 20,608 17,762 13,363
B 16,840 15,978 13,186
C 18,520 15,165 11,294
D 20,701 18,071 13,553
E 18,033 16,913 13,677
F 23,189 18,932 13,770
G 18,613 16,619 13,161
H 18,893 16,922 13,177
Total 19,427 16,834 12,919
Total (ex B & C) 19,862 17,338 13,336
Reduction in average payment vs. original -13% -33%
Reduction in claim count vs. original -5% -22%
Impact of capping claims
Year Original - all claims
between €1k and €100k
Claims between
€1k and €50k
Claims between
€1k and €25k
2015 18,973 16,679 12,917
2016 19,904 17,452 13,438
2017 20,826 17,965 13,716
Overall Average (Ireland) 19,862 17,338 13,336
UK (with psych) (adj for ination) 3,984 3,984 3,984
UK (without psych) (adj for ination) 3,612 3,612 3,612
Overall Average (UK) 3,798 3,798 3,798
Ireland: UK (with psych) 4.99 4.35 3.35
33Second and Final Report of the Personal Injuries Commission
7.2 Adjustment for special damages
l Company A, Company B, Company D and Company E record the claim payments for general damages and special
damages together. Therefore we used the motor claims data provided by the Personal Injuries Assessment Board to
adjust the individual claims data to exclude the portion attributable to special damages. We varied the adjustment by
the size of the claim, in order to allow for the fact that the proportion of the claim payment which relates to special
awards generally increases with the size of the claim.
Special award as % of general damages and special award combined
€1,001 - €5,000 4%
€5,001 - €10,000 3%
€10,001 - €15,000 3%
€15,001 - €20,000 5%
€20,001 - €30,000 7%
€30,001 - €40,000 9%
€40,001 - €50,000 11%
€50,001 - €75,000 13%
€75,001 - €100,000 15%
Source: Personal Injuries Assessment Board - Motor Claims
l We have excluded Company B from our analysis. Company A, Company D and Company E combined account for less
than 30% of the claims in our analysis. Therefore the impact of this adjustment is relatively small. We have run a
sensitivity test to show the impact of increasing the percentage of these claims attributable to special awards by
increasing the percentage by 5% and 10%. The table below shows that increasing the special awards proportion by
5% reduces the average claim payment from €19,862 to €19,581. It also shows that increasing the special awards
proportion by 10% reduces the average claim payment from €19,862 to €19,325. Therefore we do not consider this
adjustment to be material.
Average between €1k and €100k
Year Original PIAB
Adjustment
5% increase in
adjustment
10% increase in
adjustment
2015 18,973 18,739 18,521
2016 19,904 19,597 19,312
2017 20,826 20,522 20,255
Overall Average (Ireland) 19,862 19,581 19,325
UK (with psych) (adj for ination) 3,984 3,984 3,984
UK (without psych) (adj for ination) 3,612 3,612 3,612
Overall Average (UK) 3,798 3,798 3,798
Ireland:UK (with psych) 4.99 4.92 4.85
34
Chapter 2: Benchmarking of International Awards For
Personal Injury Claims (continued)
7. 3 Impact of varying the exchange rate
l We have used the average of the GBP to EUR exchange rate as at year end 2015, year end 2016 and year end 2017.
This gives an average rate of £1 = €1.22. In order to test the impact of this exchange rate on our ndings we have
tested the impact of converting the UK average claim payment using the exchange rate as at year end 2015, year end
2016 and year end 2017. As Sterling was stronger in 2015, using the year end 2015 exchange rate reduces the gap
between the average payment in the UK and Ireland.
Average between €1k and €100k
Year All Claims 2015 FX rate 2016 FX rate 2017 FX rate
2015 18,973 18,973 18,973 18,973
2016 19,904 19,904 19,904 19,904
2017 20,826 20,826 20,826 20,826
Overall Average (Ireland) 19,862 19,862 19,862 19,862
UK (with psych) (adj for in ation) 3,984 4,435 3,834 3,683
UK (without psych) (adj for in ation) 3,612 4,020 3,476 3,339
Overall Average (UK) 3,798 4,227 3,655 3,511
Ireland:UK (with psych) 4.99 4.5 5.2 5.4
FX rate 1.22 1.36 1.17 1.13
35Second and Final Report of the Personal Injuries Commission
CHAPTER 3
Report on Alternative
Compensation and
Resolution Models
36
Chapter 3: Report on Alternative Compensation
and Resolution Models
3.1 Introduction
The experience of other jurisdictions in dealing with the
compensation of soft-tissue (‘whiplash’) injuries was
initially explored in the First Report of the Personal
Injuries Commission, particularly in the context of medical
treatment and reporting.
The terms of reference of the Personal Injuries
Commission required the analysis and reporting on
international compensation levels and compensation
mechanisms; and the analysis of alternative compensation
and resolution models internationally, focusing on
common law systems while taking account of social
welfare, healthcare and related factors associated with
each jurisdiction.
Alongside desk based research, the Commission has
engaged with Irish embassies, the Motor Insurance
Bureau of Ireland (MIBI) and the Legal and Insurance
representative and regulatory bodies in several
jurisdictions to obtain information about comparative
models of compensation internationally and, in particular,
the international experience of soft-tissue (‘whiplash’)
injuries.
In selecting the particular countries or jurisdictions to
report on PIC selected some countries which were
referenced in the First Report of the Personal Injuries
Commission and which merited further examination, a
selection of common law and civil law jurisdictions, some
European countries, particularly our closest neighbours,
and other countries. Publicly available reference material
was utilised along with information obtained from
corresponding with various entities, as outlined earlier.
Canada and Australia were referenced in the First Report,
specically the Quebec Task Force WAD scale and South
Australian Guidelines. In the Canadian context, this report
focuses on the province of Ontario and the recent
recommendations of the report ’Fair Benets Fairly
Delivered - A Review of the Auto Insurance System in
Ontario‘
4
. The compensation system in South Australia
has also been explored in further detail. A brief analysis of
the United States and its multiple compensation systems
has been included. New Zealand’s Accident Compensation
Corporation
5
is explored as a notable example of a
no-fault system. Although this scheme is more than 40
years old, it has not been replicated in any other common
law jurisdiction. However, a number of states and
provinces in Canada, the United States and Australia
operate no-fault and partial no-fault schemes.
4 https://www.n.gov.on.ca/en/autoinsurance/fair-benets.html
5 https://www.acc.co.nz/
Various European Union countries are also discussed: the
UK, France, Germany, Sweden, the Netherlands, Italy and
Spain. It should be noted that unlike Canada, Australia and
the United States, these countries (with the exception of
the UK) operate civil law systems rather than common
law systems, so this limits the comparative value from a
legal perspective, however, useful information has been
obtained regarding best practices in other areas of the
compensation, particularly the successful operation of
agreements between insurers and claimants or legal
representatives. Spain and Italy operate complex systems
of tables. While this is not an ultimate recommendation of
the PIC, it is useful to illustrate the importance of certainty
in the personal injury claims environment.
Where possible, an indication of a typical award for a
soft-tissue (‘whiplash’) injury is provided, however the
requisite level of data for a veried comparison was not
generally available, and these gures are intended for
illustrative purposes only. OECD statistics for the
Consumer Price Index and Gross Domestic Product for
Ireland and each country outlined are contained in the
appendices at the end of the report.
3.2 United Kingdom
Background
The UK is a common law jurisdiction. When assessing
damages in England and Wales there should be reference
to the Judicial College Guidelines (JCG, formerly the
Judicial Studies Board Guidelines), which set out nancial
brackets for common types of injury. The JCG are used as
a guideline in addition to past case law or a court decision
on the case. In Northern Ireland a similar publication is
produced called ’Guidelines for the Assessment of General
Damages in Personal Injury Cases’. This is a separate
publication otherwise known as the ’Green Book‘.
6
Compensation awarded is subjective using the JCG as a
guideline. Other aspects which may be considered when
determining non-pecuniary damages include age, sex,
occupation, nature of injury, degree of recovery and
secondary factors such as anxiety. The Judicial College
Guidelines set out recommended damages in brackets for
injury types broken down by severity and similar to the
format in which the Book of Quantum is produced in
Ireland. The brackets contained in the guidelines list a
range of values. The JCG guidelines are revised regularly
and each subsequent edition of the Guidelines reects
inationary changes, any new decisions on quantum and
any changes in policy. It is important to note that the
guidelines are not law and they can be departed from if
6 https://www.judiciary-ni.gov.uk/publications/green-book-
guidelines-assessment-general-damages-personal-injury-
cases-northern-ireland
37Second and Final Report of the Personal Injuries Commission
the circumstances of the case so require. For example, in
Cameron v Vinters Defence Systems Ltd
7
Holland J noted
that the starting point is the guidelines, but that they can
be departed from with justication.
The Judicial Studies Guidelines have been in operation
since 1992. The aim, as outlined by Lord Donaldson in the
original edition is to use “the amount of damages awarded
in reported cases as guidelines or markers” and “to distil
the conventional wisdom contained in the reported cases”.
Following the publication of the original guidelines, the
Law Commission in its Report on ’Damages for Personal
Injury: Non-Pecuniary Loss‘ recommended changes to the
guidelines and court of appeal decisions altered the levels
of damages. In a series of test cases, the lead one being
Heil v Rankin
8
the Court of Appeal, in a landmark decision,
reviewed award levels. The Court of Appeal considered it
appropriate to increase damages in certain cases but not
to the extent recommended by the Law Commission. The
Court decided it was not appropriate to increase damages
for modest injuries and injuries receiving less that
£10,000 should not be adjusted, however the court
adjusted the awards at the highest level, for catastrophic
injuries by one third.
In 2012, a package of reforms appearing in the Jackson
Report on Civil Litigation Costs was recommended. This
report, and the subsequent decision of the Court of Appeal
in Simmons v Castle, decided that a 10 per cent increase
would apply to all heads of non-pecuniary damage in civil
claims. The 10 per cent uplift together with ination
related increases are taken into account in editions of the
guidelines published since 2013.
In addition to this revision, reforms to reduce the costs
associated with civil litigation were introduced in April
2013 through the Legal Aid, Sentencing and Punishment
of Oenders Act 2013. Further measures, to tackle fraud
and x the cost of initial ‘whiplash’ medical reports and to
improve both the independence and quality of medical
evidence, were introduced between October 2014 and
June 2015. Following the 2013 Act the Ministry of Justice
portal
9
was extended for use in all personal injury claims
valued between £1,000 and £25,000. The aim of the
portal is to reduce the costs and lifecycles of low value
claims as there are set timeframes for responding and set
xed costs. The origins and operation of this portal are
discussed in detail below.
7 Cameron v Vinters Defence Systems Ltd [2007] EWHC 2267
(QB)
8 Heil v Rankin [2000] EWCA Civ 187 (13 June 2000)
9 https://www.claimsportal.org.uk/
UK Claims Portal
In the UK, signicant changes have been made in recent
years to the Personal Injury environment. In 2010, Lord
Justice Jackson published a nal report looking at the
cost of taking legal action and the implications for access
to justice. The report looked in detail at such issues as the
use of expert witnesses, the treatment of settlement
oers, case management, alternative dispute resolution
and pre-action protocols. The main ndings and
recommendations included that:
l The costs system should be based on legal expenses
that reect the nature/complexity of the case;
l Success fees and after the event insurance premiums
should not be recoverable in ‘no win, no fee’ cases;
l General damages awards for personal injuries and
other civil wrongs should be increased by 10%;
l Referral fees should be scrapped;
l Claimants should only make a small contribution to
defendant costs if a claim is unsuccessful (if they
have behaved reasonably);
l There should be xed costs for ‘fast track’ cases
(with a claim up to £25,000);
l A Costs Council should be established to annually
review xed costs and lawyers’ hourly rates;
l Lawyers should be allowed to enter into Contingency
Fee Agreements and
l ‘Before the event’ legal insurance should be
promoted.
In 2010, the UK Claims Portal was established as a
mechanism to improve the process for settling personal
injury claims, and to minimise the need for uncontested
cases to proceed to court. The establishment of the
Claims Portal was particularly relevant to lower value
personal injury cases where settlement can be negotiated
directly between the parties. Initially, it was designed for
motor accident cases and for cases estimated to be
greater than £1,000 and lower than £10,000 in value.
On April 1st, 2013, the Legal Aid, Sentencing and
Punishment of Oenders Act (LASPO) came into eect
with the broad aim of making justice work more
eciently. It was met with mixed reactions from the legal
community. The LASPO legislation encapsulated many of
the ideas espoused in Lord Jackson’s report, including
recommendations impacting on the now established
Claims Portal. Under LASPO, the Portal’s remit was
widened to include Public and Employer Liability claims
and claims with a maximum estimated value of £25,000,
with the lower limit still set at £1,000.
38
Chapter 3: Report on Alternative Compensation and
Resolution Models (continued)
The Claims Portal is a not-for-prot company with its
Board of Directors being balanced to represent claimant
and compensator communities equally. It operates as a
stakeholder solution designed to meet the needs of users
by providing them with a safe and secure electronic
means of communication. Using the Claims Portal
provides users with several benets:
l Information can be transferred between parties in a
secure and ecient way;
l Decisions can be communicated quickly and easily;
l The cost of communications is reduced;
l By including some basic validation checks, the Portal
helps to avoid inconsistent, incomplete or incorrect
information being exchanged and
l The volume and median for settlement amounts is
published each month
The Portal’s workings and process are underpinned by the
Pre-Action Protocol for Low Value Personal Injury Claims in
Road Trac Accidents published in July 2013
10
. The
process for the Portal is summarised as follows:
Stage 1
The Claimant completes and sends a Claims Notication
Form (CNF) to the defendant. The CNF includes details of
the claimant, the accident and other items such as
information on rehabilitation undertaken. The CNF also
contains a ‘statement of truth’ which must be signed by
the claimant. The CNF must be acknowledged by the
respondent within one working day and subsequent
completion by the Respondent of an ‘insurer response’
must occur within 15 days.
Stage 2
The claimant obtains a medical report (if not already
obtained). For soft tissue injuries, the medical report
should be obtained from an accredited expert selected for
the claim via MedCo
11
. The MedCo portal was established
in 2015 and is a portal system to facilitate the sourcing of
independent medical reports for soft tissue injury claims.
Medco was brought about under the Ministry of Justice’s
Pre-Action Protocol for Low Value Personal Injury Claims in
Road Trac Accidents and avoids the need for multiple
medical experts representing each side. The medical
report forms part of a ‘settlement pack’ issued to the
defendant. This ‘settlement pack’ also includes details of
any of the claimant’s special damages such as out-of-
10 https://www.justice.gov.uk/courts/procedure-rules/civil/
protocol/pre-action-protocol-for-low-value-personal-injury-
employers-liability-and-public-liability-claims
11 http://www.medco.org.uk/
pocket expenses. Upon receipt of the ‘settlement pack’,
the respondent has 35 days to consider its contents
(including a settlement oer from the claimant), make a
counter oer and negotiate a settlement. The claimant
then either accepts the oer or makes a counter-oer.
Where the parties cannot reach agreement, the claimant
then sends the defendant a ‘Court Proceedings Pack’
which includes the settlement pack and details of
settlement oers.
Stage 3
In cases where the parties have not been able to settle the
claim via the Claims Portal, proceedings are issued and
the case is heard in court (if not agreed in the interim).
Impact of the UK Portal System
Whilst the fundamental objectives of pursuing a claim
remain the same, substantial dierences by virtue of
operation of the Portal have been realised. These
dierences relate specically to the speed and cost of
processing claims over and above the older system which
is akin to the environment in Ireland prior to the
introduction of the Personal Injuries Assessment Board.
Aspects of the new system have encountered diculties,
for example where users, in limited numbers, have
attempted to frustrate or restrict the MedCo process
whereby an independent medical examiner is selected.
Overall, however, the benets of operating the Portal in
the UK appear to outweigh the negatives.
The PIAB process, to an extent, mirrors the MedCo portal
system in how information is gathered and how the
process can facilitate settlements. The substantial
dierence is PIAB’s setting of an award gure
independent of both parties and based on a medical report
obtained from an expert not procured by either the
claimant or the respondent.
UK Civil Liability Bill
More recently, the UK Government, as part of its whiplash
reform programme, issued a consultation paper on the
soft tissue Injury (‘whiplash’) claims process. The current
Civil Liability Bill is progressing through the UK Houses of
Parliament. The consultation paper and impact
assessment ‘Reforming the Soft Tissue Injury (‘whiplash’)
Claims Process’ were published on 17 November 2016.
The consultation invited comments on a package of
measures designed to reform the personal injury claims
process and disincentivise minor, exaggerated and
fraudulent road trac accident (RTA) related soft tissue
injury claims, commonly known as ‘whiplash’ claims. In
the Government’s response to the consultation, the Lord
Chancellor and Secretary of State for Justice stated “The
39Second and Final Report of the Personal Injuries Commission
continuing high number and cost of these claims
contribute signicantly to the price of motor insurance
premiums paid by motorists. There are currently
substantial nancial incentives for claimants to bring
cases regarding relatively minor injury, or to exaggerate
the severity of their injury, and government intervention is
required to tackle this issue. The reform programme
included in the consultation document will build on
previous government reforms in this area to address the
ongoing issue of the number and cost of these claims.
They are targeted in particular at road trac accident
(RTA) whiplash claims, where it has become culturally
acceptable for claims to be made for very low-level
injuries. The level of compensation and costs paid as a
result of the high number of soft tissue injury claims has a
wider cost to motorists through increased motor
insurance premiums. Since motor insurance is
compulsory, this has an impact on all motorists in England
and Wales. It is right for the Government to take rm
action to control costs and benet consumers. “
The Consultation outlined two possible options, it was
stated in the consultation that both options would control
costs by providing more certainty to claimants and
defendants alike as to the value of the claim; “Option 1:
Removal of compensation for PSLA (Pain, suering and
loss of amenity) for all minor RTA related soft tissue
claims – this option would remove compensation from low
level ‘whiplash’ claims, although all claimants would retain
the right to claim for monetary losses such as
rehabilitation costs and loss of earnings; and Option 2:
Introduction of a xed sum of compensation for minor
RTA related soft tissue injury claims – the government
recognised that whilst the amount of compensation paid to
claimants for low level claims is still too high, there may
be a case that those with genuine injuries (albeit minor
ones) should receive some compensation for PSLA. “
Following this consultation, The Civil Liability Bill currently
being debated in the UK proposes the use of xed taris
on soft tissue claims. The legislation also includes
changes to the way the personal injury discount rate is
calculated. The Government has outlined the intention
behind this bill, of bringing certainty and transparency to
the system, and savings for the NHS. There are proposals
to ban the practice of seeking or oering to settle soft
tissue injury (‘whiplash’) claims without medical evidence.
The Bill was welcomed by the Association of British
Insurers (ABI), with insurance rms including Aviva and
Liverpool Victoria pledging to pass 100% of savings onto
motorists.
Healthcare
Health care in the United Kingdom is a devolved matter,
with England, Northern Ireland, Scotland and Wales each
having their own systems of publicly funded healthcare,
funded by and accountable to separate governments and
parliaments. Healthcare treatment is free at the point of
delivery for most people, i.e. those ordinarily resident in
the UK.
In the UK, there is a scheme to recover money for the
NHS for treatment received by patients who later
successfully claim compensation. The NHS is entitled to
recover an amount to cover the cost of the claimant’s
hospital treatment from the compensator when a claimant
is successful in claiming compensation as a result of a
road trac accident.
British health law enables the government to recover the
cost of treatment people receive through the NHS when
they have received payment of compensation, such as
following motor vehicle accidents or in workplace
accidents.
The NHS Injury Cost Recovery Scheme, which became
health law on January 29th, 2007, replaced the
previously-existing Road Trac Act scheme, which only
paid out in road trac accidents in which personal injury
compensation is received by the victim and allows the
NHS to recover the expense of caring and treating injured
people in all instances in which the patient receives
personal injury compensation. This scheme was extended
to also cover hospital treatment costs incurred in
employer, public and product liability claims.
NHS costs are recovered only where personal injury
compensation is paid. Funds recovered come primarily
from a third-party compensator/insurer. The scheme
includes the recovery of ambulance journey costs.
Conclusion
It is currently not easy to envisage how the Court of
Appeal could undertake a role such as that undertaken by
the Court of Appeal in the UK in Heil v Rankin (2000)
when eight appeals were heard together to provide
guidelines for appropriate levels of compensation in
response to the recommendations contained in the UK
Law Commission’s Report (No 257)
12
. The PIC is aware
that some recent decisions of the Court of Appeal in this
jurisdiction have sought to give guidance as to appropriate
levels of general damages for certain categories of injury.
However, the kind of injury with which this report is
concerned is not usually before the Court of Appeal and is
more likely to be before the District or Circuit Court. It is
unlikely to come within the purview of the Court of Appeal
other than by reference on a point of law from the Circuit
Court.
12 http://www.lawcom.gov.uk/app/uploads/2015/03/lc257_
Damages_Personal_Injury_Non-pecuniary_Loss.pdf
40
Chapter 3: Report on Alternative Compensation and
Resolution Models (continued)
However, following the establishment of the Judicial
Council, it is hoped that new guidelines can be produced
that can provide guidance on appropriate levels of general
damages for personal injuries. This would enable the
jurisprudence of the Court of Appeal, the output of the
PIC’s benchmarking report and any other factors
considered relevant to be taken into account and guidance
to be provided on the appropriate level of compensation
for these injuries. It is anticipated that this aspect of any
review of awards can be undertaken with support from
PIAB and other relevant stakeholders.
3.3 Canada
Overview of Canada and Motor Accident
Claims
Canada is a common law legal system. Generally, there
are three varying types of motor insurance cover available
in Canada. British Columbia is the only province in Canada
with a purely litigation-based insurance model.
Accident benets (AB) cover pays for medical care,
rehabilitation, income replacement and other benets to
aid the recovery of collision victims, passengers,
pedestrians and drivers. Third-party liability (TPL) cover
protects the insured driver and/or owner of the vehicle if
the use of the motor vehicle injures or kills someone or
damages someone’s property through the fault of the
driver. Uninsured motor coverage protects an insured
person if he or she is injured through the fault of a driver
who does not have insurance or is unidentied.
The concept of ’no-fault’ insurance developed over time
with the aim of reducing the legal and administrative costs
associated with having to prove fault in accidents involving
vehicle collisions. In a pure ‘no-fault’ car insurance
system, if a person is injured or his or her car is damaged
in a collision, the person deals directly with his or her own
insurance company, regardless of who is at fault.
Every Canadian province and territory oers some degree
of ‘no-fault’ insurance. Manitoba and Quebec have pure
‘no-fault’ systems, with no right to sue in respect of bodily
injury or death. Other provinces have a mix of ‘no-fault’
and tort-based systems.
In Canada, almost all aspects of motor insurance are
regulated by provincial governments. In most provinces
and territories, the person who did not cause the collision
also has the right to sue the at-fault party for damages. In
some provinces this is only the case if the injuries being
claimed for meet a prescribed threshold. Some provinces
specify accident benet limits and the right to sue for
additional compensation under certain specied situations,
such as when injuries are determined to be permanent
and serious.
Ontario: A Case Study
Motor insurance in Ontario is mandatory and comprises of
two parts; a ‘no-fault’ part, (also called the accident
benets or AB) where benets are provided regardless of
whether a driver is at fault; and recourse to sue an at-fault
driver for damages through a court action (also called the
tort or bodily injury part). The insurance premium charged
reects the total cost of both insurance parts.
The heads in respect of the recovery of damages are pain
and suering, loss of expectation in life, and loss of
amenity. In 1990 Ontario imposed limits on either the right
to sue for non-pecuniary loss, or a restriction on the
amounts recoverable for certain types of non-pecuniary
losses arising from motor accidents. Compensation for
pain and suering is administered if the injury sustained
meets a severity test (known as a ’threshold‘). Legal
action is only allowed in fatality cases or where a claimant
has sustained permanent and serious disgurement and
impairment of important physical, mental or psychological
function in accordance with section 267.5 of the Insurance
Act, R.S.O. 1990. Compensation awards in Ontario are
also subject to a ‘statutory deductible’ amount. The
Government applies a deductible to claims that meet the
threshold and reduces the value of the claim by this
amount. This deductible amount originally began at
CAD$30,000 and has increased annually with ination
since 2015. To recover damages, such claims must be
assessed at a higher amount than the deductible amount.
The claimant has the onus of establishing, on the balance
of probabilities, that their injuries reach the required
threshold. The three-part test established in the case of
Meyer v. Bright
13
, remains the leading authority on
interpreting the application of the threshold. The questions
set out in this case were as follows:
l Has the injured person sustained a permanent
impairment of a physical, mental or psychological
function?
l Is the function which is permanently impaired an
important one?
l Is the impairment of the important function serious?
It can also be important for a plainti to produce evidence
that they have been seeking ongoing treatment in relation
to their injuries when claiming to suer from a permanent
and serious impairment. Case law indicates that Ontario
courts, are reluctant to nd that a claimant’s alleged
injuries meet the threshold and that they have suered a
13 Meyer v. Bright, 1993 CANLII 3389.
41Second and Final Report of the Personal Injuries Commission
permanent serious impairment in the absence of evidence
of ongoing treatment
14
.
Professor of Law, Je Berryman, who has advised both
the New Zealand Ministry of Justice and the Ontario Law
Reform Commission, has advised that the level of
damages awarded for non-pecuniary loss puts Canada in
the range of similar damages by comparative common law
jurisdictions such as England and Australia
15
. These levels
are above the amounts of the ‘no-fault’ system in New
Zealand but below the amounts awarded in the United
States.
Healthcare System
The health care system in Canada is determined by the
Canadian Constitution. Responsibilities are divided
between the federal, and provincial and territorial
governments. The majority of health and social services
are administered by provincial and territorial governments.
Publicly funded health care is nanced through general
revenue raised by federal and provincial and territorial
taxation such as personal and corporate taxes, sales
taxes, payroll levies and other tax revenue. Provinces may
also charge a health premium but cannot limit access to
medically necessary health services in the event of
non-payment. The federal government also provides
equalisation payments to poorer provinces.
All health insurance plans are expected to meet national
principles set out under the Canada Health Act. Each
provincial and territorial health insurance plan covers
medically necessary hospital and doctors’ services
without direct charges at the point of service. Canadian
primary health care services are increasingly
comprehensive and may include prevention and treatment
of common diseases and injuries, basic emergency
services, referrals to and coordination with other levels of
care such as hospital and specialist care, primary mental
health care and rehabilitation services.
The provincial system in Ontario is known as the Ontario
Health Insurance Plan (OHIP). OHIP pays for basic
medical and emergency services and is funded by tax
contributions from Ontario residents and businesses. If a
person is injured in an accident caused by someone else’s
negligence or wrongdoing and makes a claim for damages
or initiates a lawsuit, the Ministry of Health and Long-
Term Care can recover its costs for health care and
treatment through the insurance principle of subrogation.
Subrogation in this context is the recovery, from a third
14 see Smith v. Declute et al., 2012 ONSC 3308 (CanLII)
Dahrouj v. Aduvala, 2012 ONSC 4090 (CanLII)
15 Non-Pecuniary Damages for Personal Injury: A Reection on
the Canadian Experience – Je Berryman
party, of medical costs that were originally paid by a
benets plan, i.e. OHIP can recover the costs of insured
health services which have already been provided at the
time of the settlement or judgment from the liable insurer.
OHIP can also recover the costs of any future health care
services that an individual might need.
When a person is injured in a motor vehicle accident, the
Statutory Accident Benet Schedule in Ontario requires
the motor insurer to pay for non-professional health care
services (such as personal support and homemaking
services, attendant care services, and community support
services). The Ministry of Health and Long-Term Care is
the Government of Ontario ministry responsible for
administering the health care system (OHIP) in the
province of Ontario.
The health system, operates ‘care pathways’ which are
designed in accordance with a number of structured
guidelines. An example is soft-tissue (‘whiplash’) injuries,
where doctors are advised to refer to ‘Guideline for the
Clinical Management of Neck Pain And Its Associated
Disorders’ and ‘Guideline for the Clinical Management of
Soft Tissue Disorders of The Upper Extremity’.
16
The most
recent review of the Ontario personal injury environment
conducted by David Marshall on behalf of the provincial
government recommended the introduction of
standardised treatment plans for all people who have been
involved in a motor collision.
Reforms
In Ontario, motor insurance premiums are considered
comparatively high relative to the rest of the country and
consequently there have been several reviews of the
system with reforms proposed. A ‘compensation culture’
has not been prominent in Canadian tort law discourse,
however reforms that have been introduced are motivated
by concerns similar to those in other jurisdictions, namely
controlling the costs of insurance premiums and litigation,
overcoming delay in claims processing and reducing the
level of fraud. The provincial government attempted to
reduce fees charged for Independent Medical Reports
(IME)’s by capping the amounts doctor and assessment
companies can charge. Ontario’s Auditor General believes
there are “unnecessarily high pay-outs” and that a lack of
measures in place to combat fraud is contributing to
problems.
17
It has been suggested by Canadian law professor and
academic Je Berryman, that the most signicant
development preventing the rise of a ‘compensation
16 The Ontario Protocol for Trac Injury Management (OPTIMa)
17 http://www.auditor.on.ca/en/content/annualreports/arreports/
en11/301en11.pdf
42
Chapter 3: Report on Alternative Compensation and
Resolution Models (continued)
culture’ in Canada was a group of cases known as the
’Supreme Court trilogy‘ which focused on a new direction
in the quantication of non-pecuniary loss arising from
personal injury, which he states was “driven by a fear of
replicating developments and cost levels witnessed in the
United States”. While in Ontario the cost of motor
insurance increased signicantly up to the introduction of
reforms in 2010, The Fraser Institute
18
think tank believes
that Ontario’s legal framework is a direct contributor to its
high insurance costs. They claim that ’regulatory severity‘
has failed to prevent insurance fraud, and has instead
encouraged it and led to runaway costs.
Since 2010 in Ontario, common trac injuries with a
favourable natural history have been legislatively classied
as minor injuries. The Minor Injury Guideline (MIG)
19
is
part of the Statutory Accident Benet Schedule. In the
current MIG, a minor injury is dened as a sprain, strain,
whiplash associated disorder, contusion, abrasion,
laceration or subluxation and any clinically associated
sequelae. It limits the payment for injuries such as
sprains, strains and whiplash associated disorder to $CAD
3,500. The Canadian Insurance organisation, the IBC, feels
that the MIG introduced in Ontario in 2010 has had an
important impact on award levels in the province.
In 2014 the Ontario government passed Bill 15 – the
Fighting Fraud and Reducing Automobile Insurance Rates
Act, 2014. The Financial Services Commission of Ontario
(FSCO) and the Superintendent of Financial Services
recently prepared a draft of a new Common Trac
Impairment (CTI) Guideline.
The most recent review of the Ontario system was a
report by David Marshall in 2017, titled ‘Fair Benets
Fairly Delivered, A Review of the Auto Insurance System
in Ontario’
20
. The author was appointed as a Special
Adviser to the Minister of Finance to review and make
recommendations as to improvements in the system of
auto insurance in the Province of Ontario.
Ontario is now, following consultation on the proposals
contained in Mr. Marshall’s report, implementing the
following initiatives:
18 https://www.fraserinstitute.org/
19 https://www.fsco.gov.on.ca/en/auto/autobulletins/2014/
Documents/a-01-14-1.pdf
20 https://www.n.gov.on.ca/en/autoinsurance/fair-benets.html
l
The province intends to introduce ’Standard
Treatment Plans’ focused on ensuring that people
with the most common injuries arising from motor
accidents receive timely, appropriate and eective
treatment. To achieve this, Ontario intends to develop
and implement standard treatment plans that focus
on recovery. It is anticipated that this initiative will
reduce costs in the system by shifting the emphasis
from cash payouts to ensuring early and appropriate
care for victims;
l The province will create independent examination
centres to provide assessments of more serious
motor accident injuries. This will include developing
standards for assessors ensuring that the opinions of
neutral assessments are respected;
l A Serious Fraud Oce (SFO) will be established in
Ontario with representatives from the Ontario
Provincial Police and the Ministry of the Attorney
General, to combat systemic motor insurance fraud;
l The province has directed the Financial Services
Authority of Ontario to complete a Risk Factor Review
and examine the risk factors used by insurers to
calculate motorists’ insurance premiums;
l Working with the Law Society of Upper Canada, the
province will ensure that people who need the
services of lawyers and paralegals are protected and
understand the agreements that they are signing,
particularly those in vulnerable positions, such as
accident victims. The report of Mr. Marshall
recommended establishing a “Strong, Independent
Regulator”. It has been proposed to provide the
Financial Services Regulatory Authority of Ontario
with rule-making authority enabling it to promptly and
eectively respond to insurance market trends,
facilitating industry innovation to benet of
consumers
l Ontario intends to establish an expert panel of up to
ve members to advise the government on enactment
of the reforms contained in the Fair Auto Insurance
Plan and to engage with drivers, insurers, health
service providers and legal service providers.
Conclusions
While Canada is a common law country like Ireland and
the UK, many of its civil trials are jury trials, depending on
the province and the cause of action. Jury trials are
considered to be less predictable in terms of awarding
damages, however it is considered that introducing more
predictability and consistency into the Irish system would
be a desirable outcome. The use of thresholds and
deductibles are intended to eliminate low value and minor
injuries from the court system, however, the counter
43Second and Final Report of the Personal Injuries Commission
argument for their introduction is that they are eectively
creating a ’target’ to beat and there is an incentive to
exaggerate a claimant’s injuries to ensure they receive
compensation.
The Canadian system however is notable in its ongoing
research and improvements in the areas of minor personal
injury. The original Quebec Task Force introducing the
WAD scale is a notable example. The Fair Auto plan in
Ontario is too recent to fully assess its impact however
the province intends to develop and implement standard
treatment plans that focus on recovery for claimants. In
his report David Marshall states “Soft tissue injuries
should not normally develop into permanent impairments
if they are treated properly to begin with. The rate of
impairment in the auto insurance system is a warning
sign that medical care is not being properly handled.
Appropriate medical treatment has been shown to reduce
or prevent the development of permanent impairments
from soft tissue injuries by as much as 80 per cent.” And
where there is a lack of emphasis on appropriate and
prompt treatment, “paradoxically, the outcomes are not
only more expensive but worse for injured parties.” The
early delivery of appropriate medical treatment could be
adopted in an Irish context to increase access to
appropriate care and physiotherapy through the public
system as referenced later in the report.
The Fair Auto plan also commits to establishing a panel of
up to ve experts to provide the government with
guidance on enacting reforms contained in the Fair Auto
Insurance Plan and to engage with drivers, insurers,
health service providers and legal service providers. While
the impact of this arrangement has yet to be seen it is
also a model that could be introduced in an Irish context
to ensure agreed reforms and improvements to the claims
environment are enacted eectively.
Figures
Minor Injuries such as sprains, strains and soft-tissue
injuries (‘whiplash’) tend to attract damages of $CAD
3,500 which is approximately €2,327.
The ’deductible‘ amount in personal injury cases which
have passed the verbal threshold (the claimant must state
they have suered permanent and serious disgurement
and impairment of important physical, mental or
psychological function) $CAD 30,000 – €19,950 in 2015
increasing annually with ination. This means a personal
injury claim must achieve an award of in excess of $CAD
30,000 to be successful and this amount is deducted
from the award.
3.4 Australia
Overview of Australia and Motor Claims
Australia is a common law country with a similar legal
system to Ireland, the UK and Canada. While there have
been extensive statutory reforms to the Tort law system in
Australia (in response to price hikes in Insurance
premiums) they are not as broad-reaching as the New
Zealand overhaul which established a comprehensive
accident compensation scheme. It is worth noting that,
although the New Zealand ‘no fault’ scheme is now more
than 40 years old, it has not been replicated in any other
common law jurisdiction.
In 2002 the Federal, State and Territory Governments
commissioned the Negligence Review Panel to
recommend changes to personal injury laws for the
primary purpose of reducing the numbers of litigated
claims and the size of court awarded injured claimant
compensation payments
21
.
While there have been several amendments to Australian
statutes in recent years which have aected the personal
injury system there, they have not been uniform across
the country. The key features of recent amendments have
been the introduction of caps and thresholds. Caps are
ceilings on recoverable damages. Thresholds are barriers
that prevent damages from being awarded unless the
claimant suers a minimum standard of loss or injury.
Most Australian States have introduced a cap on the
amount of loss of earnings that can be awarded. For
example, in the State of New South Wales, a cap prevents
a claimant receiving a loss of earnings award that is over
three times their average weekly earnings. Rules have
also been introduced on xed reductions– i.e. when a
judge makes a nding of contributory negligence, their
discretion regarding the reduction of damages accordingly
has been limited.
The aim of the introduction of thresholds is to eliminate
low value claims by making it more dicult to claim
successfully. Low value claims tend to form the bulk of
compensation claims in most jurisdictions. There can
however be diculties in the formulation of thresholds
and they can be perceived as unfair as they can fail to
consider subjective circumstances.
South Australia: A Case Study
South Australia operates a system of compulsory third
party insurance (CTP)
22
. The system is managed by the
21 https://static.treasury.gov.au/uploads/sites/1/2017/06/
R2002-001_Law_Neg_Final.pdf
22 http://www.ctp.sa.gov.au/
44
Chapter 3: Report on Alternative Compensation and
Resolution Models (continued)
Motor Accident Commission (MAC)
23
. The MAC was
originally government owned however, CTP in South
Australia was privatised on 1 July 2016. Consumers can
select from several specied private insurers to obtain
insurance cover. The MAC now functions as the State’s
Nominal Defendant, acting as an ‘insurer of last resort’
similar to the Motor Insurers Bureau of Ireland. This
means that claimants who are injured by an uninsured or
unidentied vehicle can still receive compensation.
The South Australian CTP scheme has experienced major
reforms in recent years. The most notable reform
introduced was changing the way that injuries are
assessed using a new measure of injury severity known
as ‘Injury Scale Value (ISV)’. The ISV system (ISV) was
introduced in 2014. The ISV aims to promote consistency
between assessments of general damages for similar
injuries as well as between dierent injuries which have a
similar level of assessment. Under the ISV system, injuries
are assigned a point value between zero and 100. Zero
represents an injury insuciently serious to merit an
award of general damages and 100 represents the most
severe injury. The ISV Table comprises 157 ISV item
numbers. There are a range of potential ISVs for each
injury. A minor cervical spine injury attracts values
between zero and four. This means that it is unlikely a
minor cervical spine injury will qualify for compensation.
An extract from the ISV table is attached below;
23 https://www.mac.sa.gov.au/
In tandem with the introduction of thresholds using the
ISV scale, the scheme made new provision for
catastrophically injured claimants. The reformed scheme
known as the ‘Lifetime Support Scheme’
24
provides
lifetime treatment, care and support to catastrophically
injured claimants on a ‘no-fault’ basis. Prior to 1 July
2014, there was no provision in the scheme to provide
compensation or care for claimants seriously injured in
road trac accidents when no other vehicle was at fault.
For example, someone who was rendered quadriplegic
after hitting a tree or in a single vehicle accident would
not have qualied for compensation.
In South Australia a specic accreditation scheme called
the Motor Accident Injury Assessment Scheme (MAIAS)
25
has been established to accredit Health Professionals who
undertake ISV Medical Assessments. The motor accident
injury assessment scheme accredits medical practitioners
to undertake medical assessments that evaluate whole
person impairment (WPI) and provide an opinion on which
is the most appropriate Item Number from the ‘Ranges of
Injury Scale Values’ table in Schedule 1 of the Civil Liability
Regulations 2013 (ISV Table). An injured person’s
entitlement to certain types of compensation is subject to
a threshold for the injuries sustained and based on the
Injury Scale Value (ISV).
24 http://lifetimesupport.sa.gov.au/
25 http://maias.sa.gov.au/
Extract from ISV Guidelines:
Schedule 1, Civil Liabilities Regulations, 2013 Page 25
Item No Injury Range
84 Minor cervical spine injury 0 4
Comment
• Injuries within this item include a whiplash injury with minor ongoing symptoms, and/or dysfunction including
symptoms, remaining for more or expected to remain more than 18 months after the injury is caused; and
• There are no objective signs of a neurological impairment (for example, a radiculopathy) at the time of
assessment.
Comment about appropriate level of ISV
• A low range ISV under this item will be applicable if the injury will resolve within months after the injury is caused;
and
• A high range ISV under this item will be applicable if, the injury causes persistent headaches, signicant neck
stiness and some ongoing pain and/or dysfunction
45Second and Final Report of the Personal Injuries Commission
The ISV Medical Assessment Report is an independent
medical assessment conducted by a medical practitioner
accredited under the scheme. It comprises a whole
person impairment assessment, using the American
Medical Association Guide (AMA 5)
26
where appropriate,
or GEPIC (Guide to the Evaluation of Psychiatric
Impairment for Clinicians) for the assessment of Pure
Mental Harm. There are separate templates provided by
the MAIAS to accredited medical practitioners for physical
harm or mental harm.
Various ‘heads of damage’ must achieve dierent
thresholds to qualify. To qualify for Future Economic Loss,
for example, an ISV of more than 7 is required: to obtain
damages for Loss of Consortium the ISV must be more
than 10. Medical expenses and past economic loss
however do not require an ISV threshold to be reached.
Accredited Medical Assessors are asked to provide their
opinion as to the appropriate ISV Item Number only for each
referred injury (each number containing a range of
values). It is important to note that these accredited
medical assessors do not assign a monetary value to the
injuries.
The most notable use of the ISV scale is in circumstances
where, in order to qualify for damages for pain and
suering in South Australia, the claimant must have an
ISV of more than 10.
As a general rule, an injured person will not be able to
nalise an injury claim until her or his injuries have
stabilised. Regulation 5 of the Civil Liability Regulations
2013
27
states that if the independent medical assessor is
of the opinion that the person’s injury has not yet
stabilised, the ISV is not able to be determined and the
medical assessor must report this.
Once a claim has been settled, the insurance company will
obtain a signed Deed of Release from the injured person
which will preclude any further action. The injured person
must be guided by medical and legal advisers before
settling a claim or signing a Deed of Release.
There are several circumstances when an ISV Medical
Assessment may not be required. These include if an
agreement is made between the insurer and the injured
person that an ISV Medical Assessment is not required, or
if the court determines that such an assessment is not
required. The value assigned to an injury on the ISV scale
is linked to a prescribed amount of compensation. For
26 American Medical Association Guide to the Evaluation of
Permanent Impairment, 5th Edition (AMA 5)
27 https://www.legislation.sa.gov.au/LZ/C/R/CIVIL%20
LIABILITY%20REGULATIONS%202013/CURRENT/2013.165.
UN.PDF
example, an injury with an ISV Scale value of 11 is
currently valued at - AUS$3,000 (approx. €1,917)
In circumstances where a person has sustained multiple
injuries the dominant injury must exceed the threshold for
compensation to be received. With multiple injuries, it is
not automatically the case that the value of each separate
injury is added together to achieve the total value.
Healthcare in South Australia
Health care in South Australia is largely provided by
private medical practitioners or by private and government
operated hospitals with the costs of medical services paid
by private insurance or government agencies and the
balance payable by the claimant.
Medicare is Australia’s universal health care system and is
the primary national health scheme that subsidises most
medical costs in Australia for all Australian citizens and
permanent residents. Medicare provides access to a range
of medical services, lower cost prescriptions and free
care as a public patient in a public hospital. Patients can
choose whether to have Medicare cover only, or a
combination of Medicare and private health insurance.
In addition to Medicare, there is a separate Pharmaceutical
Benets Scheme funded by the federal government which
subsidises a range of prescription medications.
Medicare is nanced by a Medicare levy which is
compulsory and administered through the tax system.
However, tax rebates are available to those who purchase
additional private health insurance.
If a claimant has received Medicare benets and is then
subsequently awarded compensation in respect of a
personal injury, they are obliged to repay the benets
received.
Conclusions
Like some states in Canada and the United States, South
Australia imposes thresholds. However, in South Australia
these are based on the use of a specic scale and medical
report. The South Australian system places a large
emphasis on the importance of medical reporting and a
specic accreditation scheme (MAIAS) has been
established in order to accredit Health Professionals for
the purpose of undertaking ISV Medical Assessments. The
First Report of the Personal Injuries Commission
December 2017 has recommended training and
accreditation for medical professionals completing injury
reports and a collaborative education programme is being
developed by the ICGP and RCSI with the support of PIAB.
46
Chapter 3: Report on Alternative Compensation and
Resolution Models (continued)
It could be considered that South Australia’s approach of
providing lifetime care to catastrophically injured
claimants on a no-fault basis, while attempting to
eliminate lower value claims from the system attempts to
achieve a balance in the claims environment, ensuring
those most at need are catered for without having to go
through litigation. However, it could also be argued that
such a system is harsher on those who have suered
more minor injuries. There have been many criticisms
levelled at the ISV scale. These include that the AMA
Guidelines (used to calculate whole body impairment) are
not used uniformly even throughout America and many
other states use dierent evaluation methods in workplace
compensation schemes. It has also been claimed that the
ISV is a blunt instrument which does not take into account
subjective considerations such as any pre-existing
conditions from which a person may suer.
South Australia Figure for Injury Scale Value over 11
points (over threshold) starts at AUS$3,210 (Euro 2,106)
and 100 points is AUS$320,570 (Euro 207,739) A minor
cervical spine injury is between 0 and 4 points
3.5 New Zealand
Background
New Zealand has a common law legal system similar to
Ireland and the UK but their motor insurance and personal
injury system diers signicantly. Motor vehicle insurance
is not a legal requirement with at fault drivers personally
liable for any damage they cause other vehicles if they are
uninsured. Compensation for personal injuries has been
removed from the legal system, with cases dealt with by a
public body. This means that injured parties cannot sue
at-fault parties except under exceptional circumstances.
New Zealand has a ‘no fault’ system of dealing with
personal injury compensation. A compensation regime
exists to ensure that any person suering from a personal
injury receives prompt medical care. The compensation
system that is linked to personal injury basically pays 80%
of a person’s income when they are incapacitated due to
personal injury. There are some one-o lump sum
payments but these are not signicant. The system is
funded primarily by levies on businesses and employers.
All personal injury claims are processed by the Accident
Compensation Corporation (ACC).
28
The corporation was
founded as the Accident Compensation Commission on 1
April 1974 as a result of the Accident Compensation Act
1972. The ACC is responsible for administering the
country’s universal no-fault accidental injury scheme. The
scheme provides nancial compensation and support to
28 www.acc.co.nz.
citizens, residents, and temporary visitors who have
suered personal injuries.
ACC is the sole and compulsory provider of accident
insurance in New Zealand for all work and non-work
injuries. The corporation administers the ACC Scheme on
a no-fault basis, so that anyone – regardless of the way in
which they incurred an injury – has coverage under the
Scheme. Due to the scheme’s no-fault basis, people who
have suered personal injury do not have the right to sue
an at-fault party, except for exemplary damages.
The ACC is responsible for dealing with the entire
personal injury process, determining the injured parties’
cover and the recompense they require, as well as
purchasing any treatment and rehabilitation services they
need which can include medical treatments, rehabilitation,
compensation, assistance care, childcare and travel to
treatment.
The ACC scheme provides a range of entitlements to
injured people, mainly for treatment costs. Other
entitlements include weekly compensation for lost
earnings (paid at a rate of 80% of a person’s pre-injury
earnings) and the cost of home or vehicle modications
for the seriously injured. The scheme oers entitlements
subject to various eligibility criteria.
ACC is primarily funded through a combination of levies
and government contributions. Income collected from
each source goes into predetermined accounts based on
the source. Costs relating to an injury are paid from one
of these accounts based on the type and cause of the
injury. The four main accounts are: Work, Earners,
Non-Earners, and Motor Vehicle. There is also a fth
account, Treatment Injury (formerly Medical Misadventure)
that draws on both the Earners and Non-Earners account.
The work account covers work-related injuries and is
funded by levies collected from employers and self-
employed people. The earners account covers Non-work
injuries by income earners and is funded by levies
collected in conjunction with tax deductions on income.
These are paid by employees through PAYE, or by
self-employed people directly. The non-earners account
covers non-work injuries by non-income earners (e.g.
children, elderly, unemployed and visitors) and is funded
by Government contribution from the general taxation
pool. The motor vehicle account covers Injuries relating to
motor vehicles on public roads and is funded by levies
included in the price of petrol (not diesel or LPG), and
through motor vehicle license fees. Treatment injury
account covers injuries arising as a result of medical
treatment and is funded from the Earners and Non-
Earners accounts, depending on the clients’ employment
status.
47Second and Final Report of the Personal Injuries Commission
ACC ’Cover Plus Extra‘ provides cover for self-employed
workers and business owners that would fail to otherwise
be covered adequately by the standard ACC Cover Plus
policy. It works by paying an agreed level of
compensation, in the event of an injury resulting in time
o from work. With ACC ’Cover Plus Extra’, a self-
employed contractor would get 100% of the pre-agreed
compensation cover until t for full-time work. A business
owner would be able to get compensation under ACC
’Cover Plus Extra‘, even if the business continued to earn
income whilst the business owner was o work injured.
This would not be possible with the standard policy.
ACC initially had a ’pay-as-you-go‘ funding model which
collected only enough levies during the year to cover the
cost of claims for that particular year. In 1999 a ‘fully
funded‘ model was adopted whereby sucient levies
were collected to cover the lifetime cost of each injury –
which might require compensation over a period of 30
years or more.
By 2009, ACC had posted massive losses with cost
escalating believed to have been due to an increase in the
number of claims, a widening of entitlements and
increased costs of meeting the claims. By 2012, ACC had
made substantial progress towards its 2019-goal (of being
fully funded), and was $4.5 billion short of matching
liabilities ($28.5b) with its assets ($24b).
Another factor was physiotherapy services being made
free at the point of delivery leading to over-servicing of
clients. Eventually the 100% reimbursement scheme for
physiotherapist services was ended and ACC levies on
wages and motorists were increased.
In the 2013 budget, a $1.3 billion cut in ACC levies over the
next two years was announced - the Earners and Workers
accounts were fully funded after ACC reduced the number
of long term ACC claimants from 14,000 to less than
11,000. In 2015/16, ACC’s outstanding claims liability
(OCL) increased by $6.4 billion, which lead to a net decit
of $3.4 billion. The OCL measures the future cost of all
existing ACC claims. That year also saw 1.93 million
claims accepted; a 5.2% increase from the previous year.
$3.5 billion was paid out to all new and existing claims.
While some maintain the benets of the system include
the removal of 3rd party legal costs and that there is no
need to pursue a costly and lengthy litigation process the
nature of the funding model means that increases in
taxation or a reduction in benets may be required to
balance the books.
Conclusions
It is dicult to envisage a similar system being applied in
Ireland in view of our current legal and constitutional
framework. There may also be a European legislative
dimension to this and it is noteworthy that no-fault
systems tend to exist outside Europe only e.g. New
Zealand, some Australian states, some US states, some
Canadian provinces.
Such a model would have fundamental cost implications
in terms of revenue raising in the form of direct or indirect
taxation.
3.6 United States of America
Background
The United States is a federal country and due to its
immense size and diversity the American personal injuries
litigation system cannot be easily summarised. For any
particular tort, states can dier on the causes of action,
types and scope of remedies, statutes of limitations, and
the levels of damages etc. For example, a limited number
of states allow actions for psychological injury in the
absence of physical injury to the claimant, but most do
not. The US courts system is primarily split between
federal and district courts. The dierences between
federal and district courts are dened mainly by
jurisdiction, meaning the types of cases a court can
decide. There are 94 US district or trial courts. There is at
least one district court in each state, and the District of
Columbia.
Each US state has individual insurance requirements for
operating a motor vehicle. Currently 12 states and Puerto
Rico have no-fault auto insurance laws. Florida, Michigan,
New Jersey, New York and Pennsylvania have verbal
thresholds. The ’verbal threshold’ stems from a provision
originally introduced in New Jersey which restricts a
motorist’s right to sue for injuries sustained in an accident
in exchange for a lower insurance premium. The ability to
sue is reserved for claimants who have suered,
permanent serious disgurement, serious impairment of
body function or death. Hawaii, Kansas, Kentucky,
Massachusetts, Minnesota, North Dakota and Utah operate
a monetary threshold in a no-fault auto insurance claim, a
threshold based on a person’s degree of injury (as
measured by dollars of medical cost incurred) that must
be reached before a suit can be brought against the
negligent party. Three states have a ‘choice no-fault’ law.
In New Jersey, Pennsylvania and Kentucky, motorists may
reject the lawsuit threshold and retain the right to sue for
any auto-related injury. There have been attempts to
introduce a national ‘no fault’ auto insurance system in the
United States Senate, most notably in more recent years
48
Chapter 3: Report on Alternative Compensation and
Resolution Models (continued)
the Auto Choice Reform Act, Senate Bill 2454
29
brought
by Kentucky Senator Mitch McConnell, however this failed
to achieve widespread support. The Rand corporation
30
has suggested that the decline of the popularity in no-fault
systems in US tort law discourse is a result of its
unexpectedly high claim costs in states where it has been
in operation which it in turn attributes to very high medical
costs.
US tort law has its origin in the British common law
system but has developed through judicial decisions.
Compensatory damages are generally divided into the
following categories: economic; non-economic; and
physical impairment or disgurement. Economic damages
are those damages that can be accurately calculated in
monetary terms. Non-economic damages refer to the
non-pecuniary losses incurred by a claimant, usually pain
suering and loss of amenity. However non-economic
damages, as well as punitive damages, are often limited by
statute due in large part to the widespread tort reform
passed in state legislatures as a result of perceived
excessive damage awards. Each State has its own laws
and time limits applicable to claims for personal injury
compensation. In most cases, it is necessary to bring an
action for compensation in the State where the accident
occurred. The vast majority of personal injury and
wrongful death cases in the US are settled after a lawsuit
has been led but before a full trial has been conducted by
the court. Cases under $100,000 are usually settled
outside of the jury system.
Legal costs come directly from compensation received
and are usually at a level of one third of total
compensation awarded. Most US personal injury lawyers
will consequently only accept claims where there has
been severe injury and where a high level of
compensation can be recovered. Compensation payments
consequently are generally higher than in other countries,
however, a considerable proportion of personal injury
claims will not in the rst instance be accepted.
It has been suggested that with a ‘No Win – No Fee’
system in operation across the US, lawyers would not
wish to take on cases where there was a risk of fraud as
they would incur outlays and not receive payment. The
contingency fee arrangement should in theory result in a
self-limiting situation.
Lawyers are obliged to engage in investigation of the
claims which they agreed to take on. There is a Federal
29 https://www.congress.gov/bill/105th-congress/senate-
bill/2454
30 https://www.rand.org/
Court Rule 11
31
which states a lawyer can be sanctioned
for bringing a fraudulent case.
Rule 11 as used in Federal law refers to USCS Fed Rules
Civ Proc R 11. It is a procedural rule requiring the attorney
of record or the party, if not represented by an attorney, to
sign all pleadings, motions, and other papers led with the
court. By signing, the attorney or party represents that the
paper is led in good faith after an inquiry that is
reasonable under the circumstances. Further, the rule
provides for the imposition of sanctions, upon a party’s or
the court’s own motion, if an attorney or party violates the
conditions stated in the rule.
There is no standardised approach or method of medical
assessment within the United States. There are some
state-based compensation schemes which contained
schedules of damages or prescribed approaches for
medical assessment but there are no nationally used
tables or schedules. The AMA Guides, published by the
American Medical Association, provide percentage
measures of whole body impairment, sometimes referred
to as WPI and are used both in the USA and
internationally. There is no direct link with compensation
payments between the percentages and compensation
amounts. The use of the AMA Guides in compensation
varies by state and they are not in use across all States.
They are however referenced in individual state
compensation schemes. The Abbreviated Injury Scale
(AIS)
32
is an anatomical-based coding system created by
the Association for the Advancement of Automotive
Medicine to classify and describe the severity of injuries.
It represents the threat to life associated with the injury
rather than the comprehensive assessment of the severity
of the injury. The AIS is used by health organisations for
clinical trauma management and outcome evaluation and
by researchers for epidemiological studies and systems
development. It is not used as a method of measuring
injury severity as a basis for calculating compensation.
Pain and suering in the US is usually valued in almost all
types of personal injury cases by reference to a formula.
The jury must agree with how the value was calculated.
Valuation methodologies include;
l The multiplier method; (Medical bills, both past and
future) x (multiplier) + (Total of Economic Damages,
property damage, lost wages, etc.) = Reasonable
Value of Case.
l The ‘per diem’ method; a certain dollar amount is
paid for each day from the time of the accident until
the patient reaches maximum medical improvement.
31 https://www.congress.gov/bill/115th-congress/house-bill/720
32 https://www.aaam.org/abbreviated-injury-scale-ais/
49Second and Final Report of the Personal Injuries Commission
l Using a job description to determine amounts; this
method entails writing the pain and suering out as if
it were a job description. What payment would this
merit?
The US health system is a combination of a privatised
system and a public system. In the US there are several
dierent types of health insurance coverage and states
often have their own health insurance regulations. There
are federally run Medicare and Medicaid systems, which
insure senior citizens and people whose earnings fall
under the poverty line but there is no universal or publicly
subsidised healthcare. Many Americans maintain private
insurance policies or have these funded by their employer,
however there remains a large amount of people who fall
outside the scope of federal schemes but are unable to
aord private insurance policies. The Aordable Health
Care Act of 2010 attempted to include more people in the
scope of the federal policies while also limiting the
grounds on which a health insurer could refuse to
indemnify a claimant, however there are still many
Americans without any health insurance or who are
considered ‘under insured’. This can lead to situations
where people often must sue to pay for necessary medical
treatment, as a result of an accident, as they cannot aord
to obtain it otherwise.
Conclusions
Due to the federal governance system, it is dicult to
succinctly summarise the personal injuries system in the
United States of America. Personal Injury awards are
frequently made by juries and therefore cannot be
predicted easily. There is no uniform approach to medical
assessment, or national guidelines or tables or schedules
of damages. There are workplace compensation
programmes with xed taris operating in certain states,
but no schedules of damages in road trac injuries. There
are uses of verbal or monetary thresholds and ‘no-fault’
and partial ‘no-fault’ insurance systems in operation in
various states.
Due to the lack of consensus and consistency in the
United States regarding road trac injuries, there is little
that can be gleaned as an example. However, it should be
noted that many reforms introduced in various states have
failed to reduce policyholder’s insurance premiums.
3.7 Netherlands
Overview of Legal System and Compensation
Schemes
The Netherlands is a civil law system. The Netherlands is
divided into 11 district courts, 4 courts of appeal and 1
Supreme Court. The majority of cases are heard at district
court level (including civil cases such as personal injury
claims of up to €25,000).
In a Personal injury case under Dutch law there are no
punitive damages. The plainti bears the burden of proof
as regards liability, causation and damages. The Dutch
Supreme Court has set out basic rules such as; a judge
must take into consideration all the circumstances of a
particular case and pay attention to previous case law. An
overview of cases, published by the journal
‘Verkeersrecht’
33
, with previously awarded damages for
pain and suering serves as a guideline. Courts may also
take into consideration amounts awarded in other
countries for similar injuries. There is widespread use of
the privately published ‘Verkeersrecht’ and the
‘Smartengeldbundel’ (by the Royal Dutch Touring Club -
ANWB which are updated every three years and provide
lists of index-linked awards) however, these serve purely
as a guideline and are not legally binding. There is a wide
margin of appreciation (or judicial discretion) allowed
when quantifying the amount of non-pecuniary damage.
A report by the Comité Europeén des Assurances (CEA)
and the Association for the Study and Compensation of
Bodily Injury (AREDOC) from 2004
34
indicates that a
substantial rise in cervical spine injury claims in the
Netherlands was noted in 1999. Case law indicates that
Dutch courts are lenient with the standard of evidence of
injury required from claimants and the absence of an
objective medical explanation for the injuries has not
prevented a successful claim. As is the case in Ireland,
both the claimant and the respondent or their insurer will
typically commission their own medical reports.
A 2014 case
35
increased the levels of personal injury
damages on the basis that lottery prizes had been
increased in the preceding decade and a lottery win
indicated good luck. A personal injury was described by
the judge as bad luck, and therefore on the basis that
lottery wins had been increased, awards for personal
injuries should also be increased.
When psychological injuries arise, in addition to or as a
result of physical injuries, there are no specic
requirements concerning the degree of seriousness of the
mental injuries suered. However, if there is an absence
of physical injury and the claim is for psychological injury
only, there is a higher threshold and the claimant must be
diagnosed with a recognisable psychiatric illness to be
eligible for compensation.
33 https://www.verkeersrecht.nl/
34 https://www.svv.ch/sites/default/les/2017-12/cea_hws-
studie_franzoesisch.pdf
35 ECLI:NL:GHARL:2014:6223
50
Chapter 3: Report on Alternative Compensation and
Resolution Models (continued)
In cases where a claimant has suered injuries as a result
of a trac accident, which could be considered as a
violent crime, and cannot receive compensation by other
means, they may have recourse to the Violent Oences
Compensation Fund (Schadefonds Geweldsmisdrijven.)
This is a fund nanced by general taxation and provides a
remedy of last resort. The fund does not pay full
compensation but determines an amount on a ‘fair and
reasonable’ basis. In practice, six xed amounts varying
from €1,000 to €35,000 are available depending on the
severity of injuries.
National Healthcare System
The Netherlands, while small in area, is a densely
populated country. It is a wealthy country with a world top
20 ranking in terms of GDP and is among the ve
wealthiest countries in the Eurozone. The Netherlands
operates what is known as a ‘Bismarckian’ health
insurance model; where the system is based on the
principle of social solidarity, oers universal coverage and
is jointly funded by employers and employees through
payroll deductions. The Netherlands has operated a
universal social health insurance system since 2006,
when reforms replaced divisions between public and
private insurance and introduced managed competition.
Although a complex cost-sharing system is in operation,
The Netherlands has upheld the principle that primary
medical care is free at the point of delivery. Administering
and providing basic health insurance is delegated to
private health insurers. The Dutch health system is among
the most expensive in Europe, however, it also receives
high satisfaction ratings from its users, in terms of quality.
It is mandatory for everyone living in the Netherlands to
purchase basic health insurance. Health insurers are
obliged to oer basic health insurance at community-rated
premium levels and cannot refuse any clients. In addition
to such premiums, Dutch citizens pay an income-
dependent contribution (which is compensated by their
employer). The Dutch Healthcare Authority establishes
maximum prices. The ‘gatekeeping’ principle is one of the
main characteristics of the Dutch system, and means that
hospital care and specialist care (with the exception of
emergency care) are only accessible upon referral from a
GP.
EU treaties give Member States the authority to design
and organise their social security systems. Social
protection in the Netherlands is not a part of the
healthcare system and is regulated dierently under
dierent acts. A healthcare allowance funded from
general taxation was created for lower-income groups.
The basic benets package includes GP care, maternity
care, hospital care, home nursing care, pharmaceutical
care and mental healthcare. The rst €385 (in 2016) must
be paid out of one’s own pocket, except in the cases of GP
consultations, maternity care, home nursing care and care
for children under the age of 18.
Tables
Compilations of all the known cases involving an award of
non-pecuniary loss are bundled together in a book edited
by various Dutch Insurance organisations such as the
ANWB. The books are largely dedicated to cases dealt
with by lower courts and the indexed amounts are related
to the seriousness of injuries. A similar system operates
in Germany. However, although the books are in
widespread use and can be considered to oer a very
useful source of comparable cases, it must be noted that
their content is not binding in any way. In addition, there is
no absolute limit on the amount of non-pecuniary
damages that can be awarded in the Netherlands and
there are no caps set by law.
The majority of personal injury cases are settled out of
court. Court cases occur when there is a dispute between
parties which cannot be resolved out of court. The
Personal Injury Council (De Letselschade Raad)
36
which
operates in the Netherlands, provides a code of conduct
for ensuring a standardised process of settling personal
injury claims. Most insurance companies and personal
injury lawyers have subscribed to and work in accordance
to this code of conduct known as the ‘GBL’
37
.
The Personal Injury Council is funded partly by the Dutch
government and partly by the market and aims to increase
consistency and provide clarity in handling personal injury
claims. The code is organised according to the
chronological order of the personal injury claim handling
process and includes best practice approaches and
references to case law. If either of the parties are
experiencing diculties or dissatisfaction in settling a
personal injury case they can contact the Dispute
Resolution Desk of the Personal Injury Council prior to
issuing court proceedings. The Dispute Resolution process
will endeavour to assist in achieving a settlement without
the need to proceed through the courts.
The GBL enjoys broad support and is adhered to by most
insurance companies and claimant’s representatives in
terms of negotiating out of court settlements. However, in
certain cases a representative can depart from the GBL if
they provide reasons for doing so. The GBL was originally
drafted for settling trac accidents only, however the
Code of Conduct now applies to personal injuries of all
types. It is nonetheless not always possible to use the
36 https://deletselschaderaad.nl/
37 https://deletselschaderaad.nl/wp-content/uploads/GBL-
Engels-2012-def.pdf
51Second and Final Report of the Personal Injuries Commission
protocol, for example where the personal injuries arise
through medical negligence.
The GBL best practice guidelines recommend that once it
has been established that a stabilised medical condition
has been reached, the parties should consult on a nal
settlement of the claim. However, it is not compulsory to
wait until a stabilised medical condition has been reached
(as is the case in France and in South Australia) and
parties can try to reach a nal settlement earlier. The
commencement of negotiations between an insurer and
claimant has the eect of stopping the limitation period
which applies and this is comparable to the Irish situation
of submitting a claim to the Personal Injuries Assessment
Board (PIAB).
The stabilisation of an injury is assessed by a doctor and
reported on by means of a medical report. Usually both
parties will instruct separate medical advisors however
the option exists to jointly appoint one medical expert to
assess the injuries. Doctors completing reports are BIG
(Beroepen in de Individuele Gezondheidszorg) registered
(the BIG register establishes qualications and entitlement
to practice). There is specialist training available for
doctors in completing medical reports however, this
training is not mandatory and it is sucient for the doctor
to have experience in completing reports to be considered
as an expert.
Reforms
Since 1 January 2014, a pilot scheme has operated in the
Netherlands which allows claimant solicitors to work
under a form of ‘no win, no fee’ agreement. The scheme
is to be trialled for a period of ve years in cases where
damages are being sought for personal injury or death.
Every no win, no fee case taken in this period must be
reported to the Dutch Bar Association’s local Supervisory
Council. In 2017 the FD Medigroep (a Dutch nancial
publisher) stated that since the start of the pilot scheme in
2014, only 64 cases had fallen under the no win, no fee
arrangement suggesting there was a reluctance on the
part of solicitors to undergo the risk of incurring fees.
In addition to the code of conduct the personal injuries
council has also published several guidelines which can
be used for specic heads of damages, such as travel
expenses, care, housekeeping etc. These have also been
used by the Dutch courts, however as with the
compilations of previous awards, these guidelines are not
binding. Legal costs are considered to form part of the
claimant’s economic losses and are reimbursed insofar as
they are reasonable and reasonably made.
To enhance standardisation of the way in which medical
advisers completed their report a questionnaire was
specically developed and is known as the IWMD
Questionnaire. The questionnaire has been specically
designed for experts’ medical examinations in cases of
accidents by the Interdisciplinary Working Group of
Medical Experts of the VU University in Amsterdam
(www.rechten.vu.nl).
Conclusions
Although the Dutch courts must have regard to
‘Verkeersrecht’ and the ‘Smartengeldbundel’, which is
updated every three years and provides index-linked
awards, there is a wide margin of appreciation deciding on
the amount of non-pecuniary damage. Courts in the
Netherlands have also more recently raised pain and
suering awards.
38
However, it is noted that the majority of personal injury
cases in the Netherlands are settled out of court. This is
attributed to the successful operation of the Code of
Conduct for dealing with Personal Injury Cases or the GBL
which most insurance companies and personal injury
lawyers work in accordance to: This Code of Conduct
consist of 10 basic principles and has been credited with
greatly improving the settlement of personal injury cases
in the Netherlands.
The following are guideline amounts provided by the Law
Society of Netherlands, however as previously advised,
there is a wide margin of appreciation aorded, cases are
assessed on their individual circumstances and there has
been a recent increase in awards.
l A minor (substantially recovered) whiplash/soft
tissue type injury: €1,250/€5,000
l A minor (full recovery expected) whiplash/soft
tissue type injury: From €1,250
l A moderate whiplash/soft tissue type injury:
€5,000/€7,500
l A moderately severe whiplash/soft tissue type
injury: €7,500/€12,500
l A severe and permanent whiplash/soft tissue type
injury: €12,500/€25,000
3.8 Germany
Background
Germany has a traditional civil law system and has a
written, codied federal constitution. All important legal
issues are governed by comprehensive legislation in the
38 Court of Appeal Arnhem-Leeuwarden 14 January 2014
ECLI:NL:GHARL:2014:181/183, VR 2014,86
Court of Appeal Arnhem-Leeuwarden, 5 August 2014
ECLI:NL:GHARL:2014:6223, RAV 2014,92.
52
Chapter 3: Report on Alternative Compensation and
Resolution Models (continued)
form of statutes, codes and regulations. As German laws
are explicitly codied, case law plays a much smaller role
(unlike common law countries such as Ireland and the
UK).
Germany has a bicameral legislative structure and the
judicial system comprises ve jurisdictional branches:
ordinary, administrative, social, labour and scal
jurisdiction. Each jurisdictional branch (apart from the
scal) is organised on two levels of courts which
ascertain facts, and a third level of supreme courts, which
decides only on points of law. As in other jurisdictions, the
German law of tort uses compensatory damages as a
means of restoring a claimant to their previous state
(‘restitutio in integrum’). German civil law does not award
any punitive damages. With the exception of the District
Court, it is obligatory for a claimant to instruct a solicitor
when bringing a claim to court.
When a claimant goes to court, the German civil code
requires them to engage initially in court based mediation
(Schlichtungstermin). If the Mediation is unsuccessful in
achieving a settlement, then the civil proceedings can
continue. Where claims involve the guarantee fund (the
national equivalent of the MIBI in Germany) the claimant
must consult an arbitration committee before proceeding
with their claim. The proof of the injury causality is
mandated by law and the onus of proof is on the claimant.
The claimant must provide both evidence of the injury and
the link between the accident and the injury. Only when
proof of the injury has been established, can the claim that
the injury is related to the accident be examined.
German judges are trained as career judges, with no
previous career of practising as a barrister or solicitor, as
is the case in Ireland or the UK. After working for at least
three years on probation, judges are usually appointed for
life. A judge will be initially assigned to a certain court, but
these assignments are not nal.
Judges refer to precedents and specic pain and suering
guidelines extracted and compiled from German
jurisdictions. Judges are assisted in their assessment by
reference to case law compilations. In Germany, these
compilations or tables are called the
Schmerzensgeldtabellen
39
. As is the situation in the
Netherlands, these are privately published tables,
recording the material facts and amounts awarded in
personal injury cases.
The tables, while not binding, are in widespread use in the
courts and by claims handlers. German ‘Schmerzensgeld’
also encompasses non-economic losses. Amounts are
39 Arbeitsstand: 11.05.2018 - dawr.de/schmerzensgeldtabelle/
pdf
awarded as a combined total in contrast with the French
‘Nomenclature Dinthilac’ which lists several heads of
damages. The relevant assessment criteria of the
compensation for pain and suering are presented in
detail (sorted according to types of injuries and amounts).
In addition, there are also statements on the litigation, tax
and social classication of the compensation. It also
includes a collection of judgments of more than 3,700
awards for pain and suering.
Judges are expected to consult these tables and award
amounts comparable to similar cases, however use of the
tables is not mandatory and Judges still enjoy a wide
discretion once their reasons for departing from the
guidelines are outlined.
Health System
Bismarck’s Health Insurance Act of 1883 established the
rst social health insurance system based on solidarity in
the world. This has evolved into the existing model which
is best described as universal health coverage with a
generous benets package.
Statutory health insurance is provided by 113 competing,
not-for-prot, self-governing sickness funds. Signing up to
a sickness fund is compulsory for every German citizen.
Citizens pay a premium calculated proportionate to their
income: half of it is paid by the client, the other half by
their employer. Low earners therefore pay a lower
premium. Health Insurance for unemployed citizens is
covered by the State. Individuals with a gross income that
exceeds the threshold and people who are self-employed
can keep statutory health insurance on a voluntary basis
or purchase substitutive private health insurance. The
majority of the German population receive their primary
coverage through statutory health insurance.
Within the German health system, the operation of public
healthcare is the responsibility of a network of public
authorities at federal, state, and local levels.
As with statutory health insurance, long-term care
insurance is nanced by contributions that are levied on
income. However, in contrast with statutory health
insurance, benets provided through long-term care
insurance are only available by application and for persons
who have contributed for at least 2 years.
The most signicant dierence between statutory health
insurance and long-term care insurance is that long-term
care insurance does not cover the full costs of care. As
benets usually cover only about 50% of institutional care
costs, people are often advised to buy supplementary
private long-term care insurance.
53Second and Final Report of the Personal Injuries Commission
Conclusion
As Germany is governed by a civil code and dierent legal
system, there are few transferable examples that could be
used in an Irish situation. In addition, the compilations of
cases used by judges and insurers in determining awards
are published privately. In the UK the Judicial College
publishes the guidelines used by judges in determining
awards, in Ireland the Book of Quantum which indicates
the prevailing levels of compensation awards is published
as a statutory function of the PIAB.
A 2018 publication of the Schmerzengeldtabellen lists the
gures as - Schmerzensgeld wegen einer HWS-
Distorsion (Schleudertrauma).
l Cervical spine (soft-tissue injury (‘whiplash’)
‘light’ €313 to €1,125
l ‘middle’ €5,384 to €13,687
A case reference in the ’light‘ category was an injury with
“Slight whiplash, pain in the back and shoulder girdle area,
pressure pain in the neck and cervical spine, four days’
incapacity for work “.
3.9 France
Legal System
France is a civil law system meaning it places a greater
emphasis on statutes as found within various codes rather
than previous decisions. This is similar to many European
jurisdictions such as Germany and Italy. There have been
recent reforms to the constitution in 2008 that have
altered the French law-making process, resulting in
parliament having a stronger vote when passing laws.
France has a dual system in place regarding its laws. One
branch is known as ’droit public’ or Public Law and
denes the principles of operation of the state and public
bodies. The other branch, known as ‘droit privé’, or private
law, applies to private individuals or bodies. Damages for
personal injury claims are dealt with by French private
law. The assessment of personal injuries is based on the
‘Nomenclature Dintilhac’ which was created in 2005 by a
working group led by the President of the Second Civil
Division of the Court of Causation, M. Jean-Pierre
Dinthilac
40
. A methodology for the assessment of personal
injury claims has been developed over the years by case
law and judicial guidelines, based on the ‘Nomenclature
Dintilhac’.
In all personal injury claims in France, the burden of proof
regarding the causation of any injury rests with a plainti.
40 http://www.justice.gouv.fr/publications-10047/rapports-
thematiques-10049/elaboration-dune-nomenclature-des-
prejudices-corporels-11945.html
Evidence from medical experts is used to identify injuries
and, in the majority of cases, the medical report also
establishes the proof and cause of injury.
As with comparable jurisdictions, there are two primary
areas considered when damages are assessed. The pain
and suering aspect of the claim (préjudices non-
économiques or préjudices personnels) and any economic
losses (préjudices économiques). The ‘Nomenclature
Dinthilac’ lists all heads of recoverable damages and
details a strict method of valuation. The recoverable
damages under French Law can also be split into
temporary damages and permanent damages, the
separation between both types being the date of
’consolidation’ of the claimant’s injuries.
The process of valuing the heads of claims relies heavily
on medical reporting in conjunction with the
Nomenclature. In the context of the judicial compensation
procedure, a medical expert may be appointed by the
Judge to carry out a medical examination. This expert
doctor is instructed to be independent and to provide a
denitive expert report to enable a judge to assess
compensatory damages. However, the Judge has
discretion and is not bound by the medical report.
In practice, the majority of personal injury cases in France
involving road trac accidents are resolved in out-of-
court settlements. This is attributed to the success of the
‘Bodily Injury in Motor Accident Convention’, which is in
widespread operation, and places an obligation on the
insurance company to make an oer to a claimant to settle
their claim within a specied period of time. This is known
as the IRCA convention (Convention of Compensation and
Remedies Corporal Automobile).
There is a separate convention in relation to claims for
property only or material damage only. This agreement
designates the claimant’s own insurer as the mandated
insurer, for minor injuries (impairment of the physical and
psychological integrity of 0 to 5%). Personal injury
damages claims resulting from a trac accident are
covered by a claimant’s own insurance when their
disability rate is assessed to be less than 5%. When the
disability is assessed at more than 5% then the other
party’s insurer settles the claim for damages. Whilst it is
possible for a claimant to proceed with a claim through
the court system hoping to receive higher damages,
claimants usually accept their own insurance claim
settlement. This disability rate, also known as Permanent
Functional Decit (DFP), is usually determined by the
expert physician during a medical report. This rate can
only be calculated when the claimant’s injuries have
‘consolidated’.
54
Chapter 3: Report on Alternative Compensation and
Resolution Models (continued)
In cases of physical and psychological integrity injury of
more than 5% or death, the victim is compensated by the
insurer of the third party (transfer of mandate).
The agreement relating to personal injury indicates that,
following a notication of the claim, the insurer will
contact the claimant for information and in accordance
with article A.211-11 of the Insurance Code, may provide
payment for medical treatment, oer to pay provisional
compensation and make an oer of compensation within
the designated time frame.
The typical process entails that within the designated time
period and following the completion of a medical report by
an expert doctor with a degree in personal injury
assessment, the insurer sends the victim an oer of
compensation. This oer covers all the elements of the
bodily injury, as well as any material damages related to
the bodily injury. This oer of compensation will also
factor in issues such as contributory negligence on behalf
of the claimant and any amounts paid or payable by
third-party payers (social security payments,
supplementary health insurers, pension funds.)
There is no deadline for the claimant to respond to the
oer. However, following the acceptance of an insurer’s
oer, the claimant has only fteen days to notify the
insurance company of any change of mind. Once the
claimant has accepted the oer the insurers must pay the
compensation within a 45-day period or incur additional
interest payments which increase with any delays. These
strict timelines and their successful operation may explain
why the majority of personal injury claims arising from
motor collisions in France are settled quickly. In addition,
before proceeding with a court case, the claimant also has
an opportunity to request a new oer from the insurers.
Healthcare System and Benets
The French health-care system was rated the best in the
world by WHO in 2000. It provides universal coverage and
combines public and top-up private insurance for both
hospital and ambulatory care. The overall social security
system was created after World War 2.
The French system is based on the ‘Bismarckian’ model
and provides statutory health insurance with the option of
purchasing a complementary private health insurance
package in addition to this coverage. The Universal Health
Protection ‘Protection Universelle Maladie (PUMA)’ was
created by Article 59 of the Social Security Finance Act
for 2016. In practice, once persons are working and
residing in France in a stable and regular manner,
universal health coverage (Puma) guarantees you a right
to cover your health costs. Prior to the introduction of
Puma, access to the health system was considered a right
derived from having paid into the system, as an employee.
The introduction of PUMA also introduced a new social
contribution for the nancing of PUMA, Cotisation
Subsidiaire Maladie. The contribution is imposed at the
rate of 8% on passive source income and gains (e.g.
dividends, interest, real estate income and capital gains)
subject to limited exceptions.
An additional health insurance policy will typically cover
benets that are not reimbursed at all by the compulsory
health insurance, such as osteopathy expenses, dental
implants or certain vaccines. Since 1 January 2016, all
companies in the private sector are obliged to provide
complementary health insurance to their employees.
Several types of complementary health insurance
coverage may be oered within the same company, but all
employees must be covered.
Tables
There is no use of specic tables, but damages are
assessed under the heads listed in the ‘Nomenclature
Dinthilac’. For every head under the Nomenclature,
damages are assessed on a scale of 1 to 7. For example,
compensation for pain and suering is assessed on a
scale of 1 to 7 to reect the level of severity. The
Nomenclature is used by the courts and by insurers in the
settlement of claims.
Conclusions
As is the case with Italy and Germany, France is a civil
system which leaves less scope for comparison with
Ireland, which operates a common law system. However,
their early settlement system appears to work well, albeit
contingent on the voluntary convention involving multiple
insurance companies. The approach in terms of timelines
and a structured method of settlement without admitting
liability is already catered for in Ireland by the PIAB
process.
A lesson which can be used as an example and has been
referenced in the PIC’s rst report is the high standard
required of doctors completing a medical report, including
those completing a report for use by insurers in a
structured settlement process. In France, all doctors
completing reports must possess a specic medical
qualication. A recommendation of the PIC’s rst report
was the introduction of training and accreditation in an
Irish context for doctors completing the agreed template
and the RCSI and ICGP are developing a training module
in an e-learning format.
55Second and Final Report of the Personal Injuries Commission
3.10 Spain
Spanish Legal System
Spain is a civil law jurisdiction based on comprehensive
legal codes and laws rooted in Roman Law. Civil law is
applied throughout the entire territory of Spain, but there
are autonomous communities that have their own civil law
systems, which are applied in relation to certain legal
issues (e.g. in Basque and Catalan regions). Jury trials
are not available in civil cases.
Spain has established a specic legal scheme for
assessing personal injury damages in road trac
accidents. This system of Personal Injuries compensation
is commonly referred to as the ’Baremo’. The precedent
for this scheme was a ministerial order introduced in 1991,
which was followed by the introduction of a mandatory
’Baremo’ in 1995. The ’Baremo’ was most recently
updated and published in Spain’s Ocial State Gazette
(Boletín Ocial del Estado) on 23 September 2015.
41
When the use of the ’Baremo’ became mandatory in 1995,
it was important to ensure that judicial independence was
maintained and for this reason it was decided to establish
ranges between the maximum and minimum amounts to
be paid and in respect of many of the heads of loss to be
compensated. The new ‘Baremo’ is divided into three
types of damages: basic personal damages, specic
personal damages and material damages (which includes
loss of earnings). Awards are calculated on the basis of a
points system, where each type of injury attracts a certain
number of points. Compensation for permanent injuries is
stipulated by articles 93 to 133 and in corresponding
tables.
Basic bodily compensation is listed in a medical ‘Baremo’
that contains an overview of dierent injuries. The
medical ‘Baremo’ also includes the classication,
description and assessment of individual injuries. The
degree of disability is measured in points, with 100
representing the highest possible rating. A special section
is included for aesthetic damage, which is rated in points
from 0 to 50.
The latest ‘Baremo’ introduced the regulation of minor
cervical spine or soft-tissue (‘whiplash’). Article 135 has
also introduced standards for establishing whether there
is a genuine temporary injury eligible for compensation
(evidence that the symptoms appeared with reasonable
immediacy and that medical care was sought also with
reasonable immediacy, and where there the mechanism of
the accident matches the injury complained of).
41 BOLETÍN OFICIAL DEL ESTADO Núm. 228 Miércoles 23 de
septiembre de 2015 Sec. I. Pág. 84473
The updated ‘Baremo’ also extended the scope of
compensation in terms of both the range of people who
can bring a claim and in terms of the heads of damage
which can be claimed for. According to the preamble to
the legal text, the new ’Baremo’ is inspired by the basic
principle of ‘restitutio in integrum’. Although the ‘Baremo’
was primarily designed for use in motor accidents and is
binding in such cases, in practice, it is used as a reference
in most personal injury cases in Spain.
Healthcare System
Spain operates a combination of private and public health
care, with public health care available on a contribution-
based system, meaning that citizens pay into the social
security system (Seguridad social) and receive access to
free health care.
The Sistema Nacional de Salud (SNS) provides universal
coverage (including to irregular immigrants) and is funded
from taxes and predominantly operates within the public
sector. Provision is free of charge at the point of delivery,
with the exception of pharmaceuticals prescribed to
people aged under 65, which entail a 40% co-payment,
albeit with some exceptions. The primary care network is
entirely public and most of the providers are salaried
professionals within the public sector with a few
exceptions described (private providers are contracted out
to provide primary health care under dierent formulas in
Valencia and Catalonia).
Conclusions
The ‘Baremo’ was initially introduced by the Spanish
Government to remedy what they considered an ‘award
lottery‘ that was causing problems of excessive
uncertainty and costs, thereby compromising the solvency
of insurance companies. The new scale has introduced
new categories of injured parties and new compensatory
concepts which were not included in the original scale.
The preamble of the new 2015 ‘Baremo’ emphasises, “the
importance of a uniform interpretation of the rules of the
system, which provides the injured party and the
insurance entities with certainty with respect to the
viability of their respective claims, guaranteeing an equal
response to identical situations, and that contributes
decisively to the rapid out-of-court settlement of conicts
and, in short, the balance of resources and the
revitalisation of economic activity.” The operation of the
‘Baremo’ is a deeply complex and yet prescriptive tari
scheme in which basic assessments are then corrected by
reference to further criteria, arbitrary ’consolidation’ dates
are selected to distinguish temporary from permanent
injuries, however the emphasis on achieving certainty in
award levels through prescriptive awards is perhaps
56
Chapter 3: Report on Alternative Compensation and
Resolution Models (continued)
something that can be explored in an Irish context.
Extracts from the new ‘Baremo’ tables are contained in
the appendices.
3.11 Italy
Background
The Italian legal system is similar to other continental civil
law systems grounded in statute law such as France,
Germany and Spain. In Italy, it is mandatory for vehicles to
be insured by authorised insurance companies.
The Italian personal injury system is grounded in Articles
2043 and 2054 of the Italian Civil Code. This Code uses
the terms patrimonial damages and non-patrimonial
damages in lieu of the terms economic/pecuniary and
non-economic damages as referred to in other
jurisdictions. Non-patrimonial damages are further
categorised as biological damages, which relate to
physical, mental and social damages, and moral damages
which relate to a person’s general well-being. Non-
patrimonial damages are comparable to damages for pain
and suering or general damages in Ireland. Patrimonial
damages relate to an economic loss sustained by the
injured party directly. They can refer to consequential
damages as a result of the accident, such as medical
expenses or outlays or to monetary loss, e.g. loss of
earnings or a future loss of earnings as a result of the
injuries. Moral damages are awarded for moral harm,
anxiety, distress and oence to a person’s general
wellbeing. The quantum of moral damages is calculated as
a percentage of the biological damages allowed. This is in
accordance with article 139 of Legislative Decree of 7
September 2005 n. 209 (Code of Insurances), which also
provides the power to increase the sum of compensation.
In November 2008, the Italian Supreme Court stated that
all the non-pecuniary losses should be calculated as a
unique amount and not ’poste par poste’ or ‘head by
head’.
42
In Italy, losses in personal injury cases are divided into
temporary and permanent damage to health (danno alla
salute or danno biologico) and damages for moral
suering (danno morale). The calculation of these
damages is facilitated using tables which indicate
damages for each accruing invalidity point.
Every court possesses its own table which may result in
dierent award amounts of compensation for comparable
injuries in dierent Italian jurisdictions. There are,
however, xed uniform damages tables for the rst nine
percentage points of invalidity, leaving damages for more
serious cases to be determined by the courts. The
42 Cass, 11 November 2008, fns 26972-975 (2009) Danno et
Responsibilita 19
calculation of awards for moral damages is also left to the
discretion of the court.
In Italy the amount of compensation to be paid for
non-material damage suered by victims of road trac
accidents is calculated according to a specic scheme.
That scheme lays down restrictions in comparison to the
assessment criteria applied to damage arising from other
types of accidents and limits the court’s discretion to
increase the amount of compensation in view of the
circumstances of the case, restricting such an increase to
one fth of the amount provided for. In cases where a
claimant in a road trac accident incurs only material
damages or their personal injuries are considered to be
minor (a minor injury is considered to be an injury less
than 9% of permanent invalidity), they can bring their
claim through their own insurers under the ’direct
compensation’ procedure, an arrangement similar to that
in France where the claimant’s own insurer will settle a
minor bodily injury claim directly, rather than the third
party’s insurer). The Private Insurance Code (derogating
to the general principles of the Italian Civil Code), uses the
parameters established by the uniform damages tables
referred to above in making settlements.
A case challenging the Italian provisions
43
was brought to
the European Court of Justice where it was held, in a
Judgment on 23 January 2014, that national provisions
establishing methods of calculation specic to road trac
accidents which are less favourable to victims than those
provided for under the ordinary rules of civil liability were
allowed. What this means is that Member States are not
infringing EU law where they have in place limiting
compensation schemes, providing that the schemes do not
have a disproportionate eect.
Healthcare System
Italy’s healthcare system is a regionally organised National
Health Service (Servizio Sanitario Nazionale; SSN) that
provides universal coverage, largely free of charge at the
point of delivery. The Ministry of Health is the main
institution responsible for public health at the national
level. Regional and local authorities (Aziende Sanitarie
Locali) deliver public health, community health services
and primary care services.
GPs and paediatricians have a gatekeeping role.
Gatekeeping in a healthcare system is a mechanism of
care referral where the GP is the rst point of contact in
the patient’s care path and is responsible for referring
patients to specialists or for further levels of care. GPs are
self-employed and independent doctors. The SSN oers
treatments to patients which are covered and which
43 Case C-371/12 Petillo and Petillo v Unipol Assicurazioni SpA
57Second and Final Report of the Personal Injuries Commission
includes tests, medications, surgeries during
hospitalisation, family doctor visits and medical assistance
provided by paediatricians and other specialists.
Recent Developments in Italy
Italy is regarded as the world leader in the use of
telematics technology and in devices known as ’black
boxes’. This technology can provide information on driving
styles or precise accident details in the event of an
insurance claim. The progressive increase in the uptake of
these devices in Italy has been attributed to the fact that
drivers who install them can obtain signicant price
discounts on their premiums according to the Italian
Insurance representative body ANIA.
44
The Osservatorio sulla Giustizia Civile
45
(translated as the
monitoring group about civil justice) at the Tribunal of
Milan has recently published the 2018 edition of ‘Tables
for the assessment of non-pecuniary damages arising out
of personal injuries and loss of parental relationship‘.
The Tables are widely referred to by Tribunals all around
Italy for the assessment of non-pecuniary damages.
Values mentioned in the 2014 edition have been increased
by 1 to 2 %. The latest edition also published new Tables,
to be used in assessing distinct types of non-pecuniary
damages, including the introduction of tables to quantify
damages suered by a victim of fatal injuries, in cases
where the death occurs, after a period of time, but as a
result of an accident. This is known as ’terminal biological
damage’.
The International Observatory on Personal Injuries
Damages in Pisa conducts research which focuses on the
implementation of a database which records published
and unpublished decisions of lower courts on personal
injury damages. Anonymised legal and medical data is
recorded and can be searched and cross referenced by
lawyers using dierent criteria i.e. head of damage, nature
of injury etc.
Conclusions
Italy operates a civil law system and, like Spain and
France, uses a method of cross referencing tables and
particular heads of damages to determine the amount of
compensation. ANIA have advised that the Italians have
the highest penetration of black box or telematics
technology in the world. Although there are privacy issues
to be balanced, the use of such technology can be used as
44 http://www.ania.it/export/sites/default/it/pubblicazioni/
rapporti-annuali/Italian-Insurance-Statistical-appendix/
Italian-Insurance/2015-2016/ANIA-Italian-Insurance-2015-16.
pdf
45 http://milanosservatorio.it/about-us/
an eective tool in tackling fraud and to assist ecient
claims resolution.
A useful lesson from Italy is that the ECJ has held that
schemes limiting the claimant’s entitlement to
compensation arising from a road accident can be
permissible so long as they are not considered
disproportionate.
Amounts for personal injuries vary throughout Italian
States as do the points that an injury of soft-tissue
(‘whiplash’) receives on an invalidity scale, which ranges
from 2-6 to no points in certain States.
3.12 Sweden
Background
Under Swedish legislation, almost all motor vehicles are
legally required to have motor insurance. Sweden awards
compensation for both the nancial and non-nancial loss
suered by a claimant. Compensation for the non-nancial
or non-pecuniary loss in Sweden, with a few exceptions,
is determined according to standardised tables. The tables
factor in both the severity of the injury and the length of
recovery time. This method of calculating compensation
has been approved by the Swedish Supreme Court.
The headings for non-pecuniary loss include; pain and
suering, disadvantage, incapacity and specic
inconvenience. The incapacity head of compensation is
based on a Swedish determined degree of disability of 1 to
99 percent.
If the victim’s disability is greater than 10% the le must
be submitted to the Road Trac Injury Commission
(Trakskadenämnden - TSN)
46
. The TSN advises the
parties on how to compensate for the personal injury and
loss of income.
The Road Trac Injury Commission (TSN) was
established in Sweden in the 1930s under the Ministry for
Justice. According to its regulations, the Commission’s
aim is to work for a uniform and fair settlement of claims
within the eld of trac insurance. The TSN is an
administrative mechanism which enables the speedy
resolution of claims although claimants maintain the right
to sue in court. The establishment of the TSN in Sweden
has been credited with claims settlements occurring
predominantly outside the courts process. The TSN
accounts for a signicant part of the practice formation in
personal injuries in Sweden. The Commission´s
constitution is approved by the Swedish Government,
which also appoints a legally trained Chairman. Deputy
Chairmen, who are legal practitioners, also serve on the
46 https://www.t.se/
58
Chapter 3: Report on Alternative Compensation and
Resolution Models (continued)
Commission, as well as lay representatives of various
stakeholder groups and of the insurance companies. The
Commission also acts as an alternative dispute resolution
body for disputes between policyholders and MTPL (Motor
Third Party Liability) insurance companies. All motor
insurance companies and Trakförsäkringsföreningen
(Swedish Motor Insurers Association) are required to
maintain and fund the Commission.
As referenced previously when the degree of disability is
above 10%, the case must be submitted to the TSN,
however the majority of trac accidents do not result in
personal injuries leading to medical disability above the
10% threshold and are therefore settled directly by the
insurance companies. The TSN can obtain additional
medical information from independent doctors to reach its
opinion on the appropriate amount of compensation to
award a claimant. The Insurance company must include a
proposal for compensation with their request to the
Commission. The TSN gives an opinion on the level of
compensation that should be paid to the claimant. The
TSN’s opinion or recommendation is not legally binding,
however, it is unusual for the recommendation not to be
accepted.
When claiming compensation, a claimant’s injury
symptoms must generally occur within 3-4 days of an
accident and be reported promptly. A claim can still be
submitted without being reported to doctor in this time
frame, however it will be very dicult to prove.
Compensation for non-nancial damage or loss divides
into three categories – pain and suering, disadvantage
and other permanent incapacity and specic
inconveniences. Compensation is assessed according to
standardised tables produced annually by the Road Trac
Injuries Commission and Insurance Sweden. The tables
are also used by courts and by Insurance Companies in
settling claims. The tables use a classication of the
severity of the injury and the length of recovery time.
Payments can be increased because of treatment
methods, such as repeated major surgery and time spent
in intensive care units.
Compensation calculations consider the seriousness of
the injuries and the length of treatment. Payment is often
administered by way of diminishing monthly amounts.
Compensation is given for injury-related expenses
incurred by the victim and considered necessary and
reasonable. Almost all medical care costs are covered by
the national social security system. Compensation for loss
of income is based on the real loss of annual income that
is attributable to the injury. All benets from the social
insurance (for instance sick pay, occupational injury
compensation and other comparable social benets) are
deducted from the compensation from the MTPL
insurance. However unlike in an Irish context where there
is a recovery of benets and assistance scheme operated
by the Department of Social Protection and Employment,
the Swedish social insurance department has no right of
recovery against the motor insurer.
Where legal fees are concerned, it is recognised that in
complex cases a claimant will require legal advice and in a
successful claim, the liable insurer bears the costs of
’necessary and reasonable‘ legal representation.
Compensation of representation costs is reimbursed for
reasonable time incurred, according to a specic
maximum hourly rate applied in Sweden. The principle is
that remuneration to the lawyer is not calculated as a
percentage of the claimant’s compensation award.
Healthcare in Sweden
In its report ‘The State of Health in the EU, Sweden
Health Prole 2017’, the OECD advised that Sweden has
the third highest health spending in the EU as a share of
GDP (11.0% in 2015 compared to the EU average of 9.9%).
Sweden’s system of universal coverage is achieved
through a decentralised national health service although
there is a limited amount of private healthcare. The cost
of healthcare is nanced primarily through taxes levied by
county councils and municipalities.
The role of the central Government is to establish
principles and guidelines, and to set the political agenda
for health and medical care. Central Government provides
additional funding through general block grants,
earmarked funding for outpatient pharmaceuticals and
specic national programmes. After a patient has incurred
an annual bill of 1100 SEK (currently approximately €110)
in respect of health expenses, all further treatment is free.
In Sweden, the Whiplash Commission was formed
between 2002 and 2005 to look at the rising levels of
soft-tissue (‘whiplash’) claims. Its focus was on the
correct diagnosis of soft-tissue (‘whiplash’) and the need
for rehabilitation and treatment. In addition, the
Commission made numerous other recommendations
including in relation to road safety.
47
The Swedish Whiplash Commission and the Swedish
Society of Medicine
48
have produced a comprehensive
review on how to diagnose and treat soft-tissue
(‘whiplash’) injuries. They dened ‘whiplash’ as ‘indirect
cervical spine trauma’ and adapted the use of the QTF
classication system. They focussed on the 1-3 grades
within the 0-4 grades in the WAD scale. Grade 0 was
47 The 2005 report of the Swedish Whiplash Commission
48 The Swedish Society of Medicine and The Whiplash
Commission Medical Task Force 2006
59Second and Final Report of the Personal Injuries Commission
removed as it is the mildest grade. The removal of grade 0
stops the least severe of soft-tissue (‘whiplash’) claims
from receiving compensation. Grade 4 is a fracture or
dislocation.
Conclusions
Sweden tends to settle the majority of claims outside of
the courts, by oering an independent opinion on the
appropriate compensation awards through the TSN. The
role that the TSN provides in oering an independent
assessment of the appropriate award level and obtaining
independent medical reports is already in operation in
Ireland with the PIAB model. It is recommended that a
claimant provide evidence of the prompt appearance of
symptoms and seeking treatment when making a claim for
compensation, similar to the situation in Norway. Sweden
has completed extensive research on the diagnosis and
successful treatment of soft-tissue injuries (‘whiplash’)
through collaborative research projects involving the
Swedish Whiplash Commission and the Swedish Society
of Medicine, and there are potential benets in the funding
of specialised medical research into these types of injuries
in an Irish context.
3.13 Conclusions
There are a myriad of approaches to personal injury
compensation, internationally and within individual
jurisdictions. It is clear however, despite the multiple
approaches, there is no one example that can be provided
as an example that PIC believes should be directly
mirrored. It is also important to note the legal system in
Ireland and constitutional constraints when considering
the feasibility of implementing or replicating some of the
schemes and systems discussed. The various themes that
have emerged from the research are discussed below.
Early medical treatment and standard treatment plans –
Ontario is in the process of introducing standard treatment
plans to ensure that motor accident victims access timely
and eective treatment. In Sweden, claimants must
demonstrate they have sought early medical treatment
in order to pursue a claim for compensation. In South
Australia, standard guidelines for the medical treatment of
soft-tissue (‘whiplash’) injuries have been published and
are in widespread use.
Medical Assessment Scales – There is no universal scale
of medical assessment in operation internationally.
However, the Whiplash Associated Disorder scale,
established by the Quebec Task Force, as discussed in the
First Report of the PIC is internationally recognised and in
widespread use, particularly in Canada, Australia and the
United states. South Australia operates a unique
numerical scale called the ISV scale, based on the
American Medical Association guidelines. Sweden
operates a modied scale derived from the WAD scale. As
noted in the First Report, there is no universal scale in
operation.
Codes of Conduct – In a number of the European
countries examined, there are standard processes and
protocols for settling personal injury claims, which
insurance companies and claimant representatives adhere
to. This means that, although such adherence is
essentially voluntary, and the right to access courts
remains, the majority of claims for soft-tissue injuries
(‘whiplash’) are settled within a dened time period
outside of the courts. The Netherlands operates a specic
settlement protocol between Insurers and lawyers. France
operates a direct settlement convention between
claimants directly and insurance companies. The Swedish
model provides a recommendation from the National Road
Trac Commission, whose aim is to work for a uniform
and fair settlement of claims. In Ireland the PIAB process
provides independent assessments within dened
timeframes and mirrors these structured processes,
however greater certainty regarding award levels could
ensure that there is more uniformity relating to award
amounts and enable more claims to be settled within this
process.
Thresholds and other conditions which claimants must
meet – A number of jurisdictions have introduced specic
criteria for qualifying for compensation with the intention
of reducing low value injury claims, which typically form
the majority of compensation claims. In Australia ( New
South Wales and South Australia ) there are injury level
thresholds – i.e. an injury must be medically assessed
over a certain number to be considered for compensation.
This is also the case in Italy. In both Sweden and Norway
prompt evidence (3 to 4 days in Sweden and 72 hours in
Norway) of accident related symptoms must be produced.
In Ontario the Minor Injury Guidelines distinguish claims.
A ‘minor injury’ is dened under the Regulations as “a
sprain, strain, whiplash associated disorder, contusion,
abrasion, laceration or subluxation” and funding for a
‘minor injury’ is capped at CAD$3,500. A claimant in
Ontario must obtain over CAD$30,000 in damages to
retain an award, and the award is subject to a deductible
(a specic nancial amount deducted from personal injury
awards, meaning a claimant will receive no compensation
if the award is less than this gure). While in theory, a
threshold might seem an eective mechanism to eliminate
low value claims, the operation of such thresholds can be
fraught with diculty. There are dangers of unfairness to
claimants in the operation of injury level thresholds, as
they fail to consider subjective aspects of the claim. In
addition, there is a risk of articial ination of claims and
exaggeration by claimants endeavouring to make sure
60
Chapter 3: Report on Alternative Compensation and
Resolution Models (continued)
their injuries qualify for the threshold and corresponding
pressure on medical assessors to ensure that their report
enables a claimant to access compensation
Telematics and Technology – Research on Italy has
indicated a consistent increase in the use of telematic
technology and this is mirrored in the UK. The use of
telematic technology, incentivised by the insurance
industry providing premium discounts for the use of same,
is recognised as a useful tool in the elimination of
fraudulent and exaggerated claims from the claims
environment and this example can be replicated in
an Irish context.
61Second and Final Report of the Personal Injuries Commission
CHAPTER 4
Report on ‘Care Not
Cash’ Models and
Variations in Place
Internationally
62
Chapter 4: Report on ‘Care Not Cash’ Models and
Variations in Place Internationally
4.1 Introduction
One of the terms of reference for the Personal Injuries
Commission, as set out in the Cost of Insurance Working
Group Report of January 2017, was that the Commission
report on ’care not cash’ models and variations in place
internationally.
The etymology of the term ‘care not cash’ has its origins
in policy making in homelessness where a local authority
scheme was introduced by San Francisco County to
replace monthly cash sums with housing, and access to
counselling services and medical care. The term has
evolved in recent literature and commentary to also
include the concept of providing injured claimants with
appropriate medical care rather than nancial
compensation in order to obtain ’restitutio in integrum’
(restoration of their pre-accident status).
4.2 Consideration of the Introduction of a
‘Care Not Cash’ Compensation System
The Department of Transport, Tourism and Sport
(DTTAS), who have responsibility for implementation of
the motor insurance directives in Ireland, were asked to
provide a view on the possible introduction of an
alternative ‘care not cash’ compensation system for
soft-tissue (‘whiplash’) injuries.
A case considered by the Court of Justice of the European
Union (CJEU), Case C371/12 Petillo, is of relevance to the
issue. In the Petillo case, the CJEU stated that the victim’s
right to compensation cannot be excluded or
disproportionately limited.
The view given to the PIC was that the Motor Insurance
Directives allow for the requirement to pay general
damages to be mitigated in part, provided it does not
disproportionately limit the victim’s right to compensation.
However, care cannot be fully substituted for cash.
While a combination of care and cash could be oered as
part of a compensation plan, there are a range of practical
diculties with the operation of such a system including:
who would provide the care; what level of care is
appropriate; how the care is costed; who would regulate
the level and quality of care to be provided and who would
indemnify the providers of the care? Another issue arises
as to whether an insurer could recover the cost of care
already provided where a victim is ultimately found not to
be entitled to compensation. Further issues also arise in
relation to privacy issues and a claimant’s entitlement to
choose their medical treatment and personnel.
4.3 Comparative Systems
There are no examples available of countries that have
entirely replaced or substituted monetary damages with
healthcare. The ACC scheme in New Zealand has been
referenced in commentary as an example of a ’care not
cash’ system, however the scheme provides a range of
entitlements to injured people and does not solely provide
the costs of medical treatment or care. Other entitlements
include weekly compensation amounts for loss of earnings
and the cost of home or vehicle modications for those
seriously injured. The jurisdictions we have examined in
the report typically reimburse a claimant’s medical
expenses as part of their pecuniary damages claim. In
countries or jurisdictions where there is a universal health
care scheme in place, the state health insurance systems
may seek the cost of the claimant’s care to be reimbursed
to them by the third party.
From a high-level overview, it would appear that in
countries where healthcare is universal and readily
accessible (e.g. France and Germany) there is less
demand for monetary compensation when compared to
countries where there are high healthcare costs such as
the US.
In the report ’Fair Benets Fairly Delivered‘
49
, David
Marshall, Special Adviser to the Minister of Finance in
Ontario, Canada, stated that the system there was focused
on “cash not care”. In the report, he notes that “Medical
care drives all the other costs in the system. The longer
an injury takes to resolve, the more likely it is to become
chronic, the more medical care is needed and all the other
costs – replacement of lost wages, attendant care,
compensation for pain and suering also go up. Worst of
all, the injured person is not well served by extending their
disability.”
In order to refocus the system from cash rather than care,
Mr Marshall recommended that medical and rehabilitation
services should be delivered to accident victims in the
most timely and ecient manner so as to encourage a
return to health and, ultimately, reduce litigation costs.
In response to the recommendations and consultation on
the report, Ontario is now implementing Standard
Treatment Plans. The focus of these plans, as set out in
the report, is on ‘“Making sure people with the most
common collision injuries receive timely, appropriate and
eective treatment by developing and implementing
standard treatment plans that focus on recovery,
monitoring health outcomes and increasing awareness of
best treatment practices, including an increased emphasis
on making sure victims receive the care they need. The
rst of these standard treatment plans will be developed
49 https://www.n.gov.on.ca/en/autoinsurance/fair-benets.html
63Second and Final Report of the Personal Injuries Commission
by spring 2018. This is expected to reduce costs in the
system by changing the emphasis from cash payouts to
ensuring appropriate care for victims. “
In the UK, the Pre- Action Protocol for personal injury
claims
50
contains a rehabilitation code, which, while not
mandatory, is designed to ensure that the “claimant’s need
for rehabilitation is assessed and addressed as a priority,
and that the process of so doing is pursued on a
collaborative basis by the claimant’s lawyer and the
compensator.”
The Swedish Whiplash Commission’s
51
nal report,
produced in 2005 in collaboration with the Swedish
Society of Medicine, acknowledged the importance of
timely medical intervention in cases of soft-tissue
(‘whiplash’) injuries, while acknowledging the limitations
of the public health service. In particular, the report states
that “From a medical point of view it is important for the
person injured to embark quickly on a constructive
process of rehabilitation. But today the medical services
cannot always o er encouragement for such a course.
The risk is, therefore, that the person su ering a
whiplash-related injury nds himself in a complicated
invalid role, where it becomes more important to obtain
acknowledgment of a claimed injury than to focus on
recovery. The consequence of this may be that the
symptoms become worse”. The Commission also notes
that “The patient’s experience of reception by the medical
services is also relevant to the likelihood of becoming free
from symptoms. Quick and accurate assessment, with the
patient’s symptoms being taken seriously and seen in a
wider context, is a necessary part of the whole process
that should follow a road accident”
As mentioned in the First Report of the Personal Injuries
Commission published in December 2017, in 2008 South
Australia produced “Clinical Guidelines: Best practice
management of acute and chronic whiplash-associated
disorders”
52
developed by TRACsa, the South Australian
Centre for Trauma and Injury Recovery Inc. and its
Implementation Working Group for the Motor Accident
Commission (MAC)
53
. These guidelines recommended a
standardised approach to the medical assessment and the
treatment of soft-tissue injuries (‘whiplash’) incorporating
the use of the QTF grading of WAD. The Guidelines also
include best practice for doctors providing advice to
patients and states that “Advice to stay active and live as
normally as possible is the most important intervention in
50 http://www.justice.gov.uk/courts/procedure-rules/civil/
protocol/prot_pic
51 http://whiplashkommissionen.se/www.
whiplashkommissionen.se/english/english.html
52 http://implementationcentral.com/doc/Whiplash-Clinical-
Guidelines_practitioner.pdf
53 https://www.mac.sa.gov.au/
the management of neck pain following whiplash.
E ective education is necessary to manage expectations
regarding recovery, and particularly to prevent the
development of fear avoidance (“pain means I have
re-injured my neck and I should therefore avoid activity)”.
4.4 Early Intervention to Obtain Optimum
Outcomes
It is also necessary to consider the claimant’s duty to
mitigate their losses in the context of receiving medical
care. The practical application of tort law in Ireland means
that the claimant will not generally be adversely a ected
by their failure to mitigate their losses. The PIC considers
that claimants should be obliged to mitigate their losses by
receiving appropriate medical care and treatment where
available. Both medical literature, recent guidelines and
approaches taken in countries such as Ontario, South
Australia, the UK and Sweden emphasise the importance
of claimants receiving early and appropriate treatment to
obtain the optimum outcome in relation to their injuries. It
is also highly recommended by medical personnel that
claimants receive appropriate advice in relation to the
nature of their injury and the likely course of their
recovery from the injury.
Seeking appropriate medical treatment, where possible,
can also be considered in the context of a claimant’s duty
to mitigate their losses. Halsbury’s Laws of England, Vol. 29
(2014) Para 378
54
states: “A personal injury claimant
must mitigate his loss by obtaining proper medical
treatment and not acting so as to retard his recovery, and
he is not entitled to damages in respect of any pain,
su ering, loss of amenities or loss of earnings consequent
upon his failing to do so
.”
4.5 Conclusions on the Introduction of a
‘Care Not Cash’ Compensation System
As EU and national law do not allow for cash awards to
be replaced in full by care payments and the introduction
of a partial model of care payments in addition to cash
payments would create a myriad of issues, which would
outweigh any nancial bene ts, the PIC do not consider
that the introduction of an alternative ‘care not cash’
compensation system in Ireland would be appropriate at
this point in time. However, the PIC is of the view, based
on international evidence, that early and appropriate
medical treatment will deliver optimum outcomes for the
claimant.
54 Halsbury’s Laws of England Fifth Edition Volume 29 2014
Crown and Crown Proceedings, Damages
64
Chapter 4: Report on ‘Care Not Cash’ Models and Variations
in Place Internationally (continued)
It was agreed by the PIC that the introduction of an early
intervention standard treatment plan in a manner similar
to the pre-existing Accident and Emergency protocols in
operation in Tallaght hospital should be rolled out on a
national basis, and funded through pre-existing charges.
4.6 Early Intervention and Rehabilitation
The system for resolution of personal injury claims to
date, has had a greater emphasis on monetary
compensation than on early therapeutic intervention to
facilitate eective injury recovery solutions. There are also
no national standards or guidelines for treatment of
soft-tissue (‘whiplash’) injuries.
The 2004 Motor Insurance Advisory Board (MIAB) report
recommended that insurers ‘pursue a policy of seeking to
assist in the rehabilitation of injured parties where such
action is appropriate’.
Although various initiatives were commenced on foot of
the MIAB recommendation, they gained little traction. One
common argument put forward at the time against the
sustained development of initiatives in this area, was that
the scale of the (Irish) market and the prot margins
available were too small to attract the required level of
additional service providers.
As part of previous engagements by the PIC with medical
professionals, the importance was highlighted, of the
benets of more widespread early intervention and
rehabilitation specically for soft-tissue (‘whiplash’)
injuries. Numerous medical studies were referenced in
terms of the benets of this approach.
The enhanced adoption and promotion of early
intervention and rehabilitation in respect of WAD injuries
could be rolled out as a complementary measure within
existing personal injury systems instead of the originally
proposed overall alternative approach such as a ‘care not
cash’ model. In that way the viable ‘care, less cash’
approach could be implemented and the benets that a
system with less focus on cash and more focus on injured
party recovery needs, might still be realised.
4.7 Recent Canadian Developments
Ontario has recently introduced (December 2017) a ‘Fair
Auto Insurance Plan’ to promote better care for victims
and aordable rates for drivers:
“The plan includes signicant reforms that will address
fraud in the system, put victims rst by providing better
access to care for those injured in auto collisions and
strengthen consumer protection.
An aspect of one of the highlights of the plan is the
implementation of standard treatment plans for common
collision injuries such as whiplash to help people in a
timely fashion, receive the treatment they need after an
accident. In Alberta and Nova Scotia, diagnostic treatment
protocols, which are similar to programs of care, provide a
structured model for the treatment of strains, sprains and
whiplash injuries. The focus of these protocols is patient
recovery. Reasonable and predictable costs have been
negotiated with providers, patients are treated quickly and
appropriately. Ontario has developed a Common Trac
Injury Guideline, which lays out very detailed, evidence-
based treatment paths for common injuries.”
4.8 Case Study: Tallaght Emergency
Department Early Injury Rehabilitation
Intervention Model
Tallaght Emergency Department (ED)’s approach was
established as a local arrangement based on current
international best practice considerations and procedures
endorsed by the Royal College of Emergency Medicine
(RCEM), rather than a specic HSE instruction. These
include early treatment, physiotherapy, active rehabilitation
and psychological support and reference to other
international guidelines.
On admission to Tallaght Emergency Department, parties
with a soft-tissue (‘whiplash’) injury are evaluated by an
Emergency Department doctor with reference to the
Canadian C-Spine rule (referenced in South Australia and
New South Wales soft-tissue (‘whiplash’) assessment
approach medical guidelines). The Emergency Department
has immediate access to all diagnostic aids.
Patients are allocated a patient identication number on
attending the Emergency Department. This facilitates
tracking, transfer, discharge and follow up of patients
electronically.
If there is no fracture or neurological injury found on
presentation patients are prescribed appropriate analgesia
and the treating Emergency doctor will transfer patients to
the physiotherapy department for an appointment within a
few days (3/4/5) of their initial attendance at the
Emergency Department.
65Second and Final Report of the Personal Injuries Commission
Physiotherapists from the hospital’s Physiotherapy
Department work closely with the Emergency Medicine
sta and carry out treatment in the same Emergency
Department where the patient is evaluated initially. This
continuity of care simplies matters and follow up
attendances from the patient’s perspective. The
Physiotherapist has immediate access to a Senior
Emergency Doctor should they feel the patient needs to
be evaluated for an MRI or have a second medical
consultation.
In the majority of cases, injured parties only require and
attend for one follow up physiotherapy appointment. In
problematic cases, the treating physiotherapists can refer
patients back to the Emergency Department and the
Emergency Department doctor will reassume
responsibility for the patient. Tallaght Hospital operates
this system as a best practice model approach to Whiplash
Associated Disorder injuries.
Upon discharge from the Emergency Department, patients
who have sustained soft-tissue (‘whiplash’) injuries are
provided with a ‘Patient Information’ leaet; Neck Sprain
Advice. The content of the leaet refers to the nature of
neck sprain injuries, details on symptoms and appropriate
pain relief measures including ice and heat therapy.
Funding
Physiotherapy costs are typically reimbursed as part of a
claimant’s special damages; however, a private patient will
incur an outlay when undergoing treatment.
Hospitals receive €314 per Emergency Department visit
and €1,545 per patient admission from the HSE.
The referrals for physiotherapy from the Emergency
Department in Tallaght Hospital are funded entirely
through the public system (specically the Road Trac
Accident attendance fee budget line).
Considering the costs which can arise from Whiplash
Associated Disorder injuries, assigning a small percentage
of these funds to deliver early intervention and
rehabilitation treatment and facilitate optimum patient
recovery would seem worthwhile. This also would also
enable claimants to return to work promptly. The roll out
of swift publicly funded physiotherapy treatment for
patients with soft-tissue (‘whiplash’) injuries is anticipated
to deliver benets to injured parties, the healthcare
system and to society as a whole.
66
Appendices
67Second and Final Report of the Personal Injuries Commission
Appendix 1: Membership and Secretariat of the PIC
Members Alternate Member Organisation
Mr Justice Nicholas Kearns
Chair
Jonathan Small
(Kathryn McGuill from January-September
2017)
Competition, Consumer Protection
Commission
Eadaoin Collins
(Colm Forde from January -September 2017)
Breda Power Department of Business,
Enterprise and Innovation
Conan McKenna Tracy O’Kee e Department of Justice and
Equality
Aidan Hanratty Kerry McConnell
Replaced by John Farrell in
March 2018
Insurance Ireland
Professor Michael Stephens Irish Hospital Consultants
Association
Conor O’Brien Helen Moran Personal Injuries Assessment
Board
Siobhan Hayes Simon Watchorn State Claims Agency
Sara Moorhead Finbarr Fox The Bar of Ireland
Stuart Gilhooly Frances Twomey The Law Society of Ireland
Secretariat
Derval Monahan
Secretary
Eoghan Coyne
Etain Finn
Stephen Watkins
Department of Business,
Enterprise and Innovation
Personal Injuries Assessment
Board
68
Appendix 2: Meetings and Stakeholder Engagement
Meetings
The business of the Commission was primarily conducted through monthly meetings. PIC had the ability to engage
external expertise and through its work invited relevant parties to contribute, make presentations and attend some
meetings.
Stakeholders the PIC engaged with included
Association of British Insurers (ABI)
American Association for Justice
Alliance for Insurance Reform
Department of Health
Dr Jean O’Sullivan
Enterprise Rent a Car
IBEC
Insurance Ireland
Irish Association of Emergency Medicine
Irish College of General Practitioners
Irish Hospital Consultants Association
Law Society of Ireland
Ministry of Justice UK
Motor Insurance Bureau of Ireland (MIBI)
Royal College of Surgeons in Ireland
Department of Transport, Tourism and Sport
69Second and Final Report of the Personal Injuries Commission
Appendix 3: Update on the implementation of
recommendations of the First Report of the
Personal Injuries Commission
Recommendations of the First Report of the Personal Injuries Commission
Recommendation A Standardised Approach to examination of and reporting on soft-tissue
injuries should be adopted.
Suggested timeframe for
implementation
To allow for the changeover in examination and reporting procedures it is
suggested that a timeframe of by mid-2018 is appropriate
Action Points 1. The Quebec Task Force (QTF) Whiplash Associated Disorder (WAD) grading
should be used going forward by all medical professionals reporting on
relevant injuries.
2. The Neck Disability Index (NDI) and Visual Analogue Scale (VAS) should be
included going forward as part of personal injury medical reporting
examinations.
3. Additional tests should be at the discretion of the examining medical
professional.
4. The template form included in the appendix should be used by examining
medical professionals in all relevant cases.
4(a) Insurers should ensure that all cases commissioned by them from
medical examiners going forward are completed in line with the
template form
4(b) PIAB should redesign their Form B going forward to reect the
recommended standardised template.
4(c) Court Rules changes should be considered which would require reports
to be produced using the standardised format.
4(d) The Use of standardised Medical reports should be included in any
pre-action protocol developed for personal injury claims.
5. Relevant medical professional bodies to publish, as soon as possible,
guidelines in respect of training for use by medical professionals.
Recommendation Training and Accreditation of medical professionals who complete personal
injury medical reports should be promoted. This should become ‘Best
Practice’ and training should be introduced at the CPD level.
Suggested timeframe for
implementation
By end 2018
Action Points 1. All those involved in commissioning reports should ensure the use of
accredited medical professionals for completion of their personal injury
medical reports, when the relevant training and accreditation programmes
are in place.
2. Members of the PIAB panel completing personal injury medical reports
should in respect of completion of relevant injury medical reports, when the
relevant training and accreditation programmes are in place, be accredited
accordingly.
3. The Accreditation requirement should be included in any pre-action protocol
developed for personal injury claims.
4. The quality of the training should be monitored from implementation in the
same manner applicable to existing CPD programmes.
5. The CPD training could be delivered by individual medical professional
bodies to their members or by independent training providers to medical
professional bodies and medical practitioners.
70
Appendix 3: Update on the implementation of recommendations of
the First Report of the Personal Injuries Commission (continued)
Update on implementation
The PIC facilitated a meeting with medical stakeholders on
the 20/03/2018 to review progress on the implementation
of specic recommendations since the publication of the
First Report of the Personal Injuries Commission. The
purpose of the meeting was to provide a forum for the
medical organisations to discuss and progress the
implementation of the recommendations, regarding the
standardised medical reporting form template and the
promotion of training and accreditation of medical
professionals who complete personal injury reports. It
was agreed at the meeting that;
The RCSI and the ICGP would collaborate on a proposal for an
education module for doctors which incorporates the
recommendations and is based on enhancing the existing
PIAB E-learning module.
Since this meeting, the following has occurred:
1. A preliminary proposal has been developed and the
PIC secretariat is continuing to work with RCSI and
the ICGP to progress the matter.
2. An updated and revised PIC medical report template
was circulated to PIC members on 01/06/2018. The
nalised version of the medical report template was
developed with input from PIC members and agreed
on following discussion at the PIC meeting on the
18/05/2018.
3. It is expected that it will take approximately six
months to get the PIC template’s use fully up and
running in the Insurance Sector. The benets to be
realised from use of the standard medical report
template will come from the consistent use of the
template by all stakeholders.
4. PIAB is the process of rolling out the revised template
for use by its independent medical panel.
5. The Courts are also considering the prescribing by
rule of Court the use of the revised standardised
medical template and the matter is currently under
consideration by the respective Court Rules
Committees agendas for discussion.
Recommendation Link future publications of the Book of Quantum to the newly standardised
examination and reporting injury categories i.e. ‘whiplash’ soft-tissue
injuries / QTF WAD scales. The Cost of Insurance Working Group report of
January 2017 recommends that the next review of the Book of Quantum
should take account of the output of the work of the PIC. This
recommendation highlights the output of the initial PIC report in terms of its
potential impact on this next review.
Suggested timeframe for
implementation
2019 when the next Book of Quantum is due for publication
Action Points 1. PIAB to consider in the context of the next Book of Quantum.
Recommendation Relevant injury data should be collated and published by appropriate bodies
Suggested timeframe for
implementation
By end 2018
Action Points 1. PIAB to produce information going forward relating to the incidence of
’whiplash’ soft-tissue injuries.
2. Other relevant bodies to publish data relating to the incidence of ‘whiplash’
soft-tissue injuries. There may be merit that such data available from
insurers, forms part of the National Claims Information Database which is
being developed by the Central Bank of Ireland and which needs
consideration by the relevant parties involved.
Suggested timeframe for
implementation
By end 2018.
71Second and Final Report of the Personal Injuries Commission
1
Claimant Name
Address
Gender Marital Status
Date of Birth
Occupation
Currently at Work
Yes No
Height Weight
R/L Hand Dominant
Date of Accident Examination Date
Previous examination
information
Time elapsed since date of
accident (accident date to
examination date)
Years Months
Brief details of the accident/incident
Medical Reporting Template
for Soft-Tissue (‘Whiplash’) Injury
1
72
Appendix 3: Update on the implementation of recommendations of
the First Report of the Personal Injuries Commission (continued)
2
Injuries Sustained (including diagnostic information)
Details (include history of condition immediately after accident and in subsequent few days)
Summary Diagnostic Information
Date rst Treatment Sought
From whom
Was patient hospitalised?
If yes, where?
Duration of inpatient stay? Length of absence from Work From To
Number of GP visits Number of Physiotherapy sessions
Number of Specialist/s visits
Identity of Specialists,
if known
Treatment/Investigations to date
Medications/dosage/changes in e.g. last six months
73Second and Final Report of the Personal Injuries Commission
3
Please Complete Where Injury is Neck Pain or Whiplash Associated Disorder
Assessment of cervical range of motion
Normal Abnormal
Palpation for consistent tenderness
Present Absent
Neurological Signs
Present Absent
Treatment/Investigations to date
The claimant should compete the attached NDI Questionnaire – Neck Disability Index
NDI Score = %
Following Assessment claimant should be classied to the Quebec Task Force (QTF) Classication of Grades
Indicate the WAD Grade
WAD 0 WADI WAD II WAD III WAD IV
If the claimant’s WAD Grade has changed during the course of their recovery, please comment on same:
Indicate the degree to which you feel the claimant’s symptoms / disability have been caused by the accident / event which
is the subject of this claim? Tick one box
Based on my assessment of the injury as described by the Claimant the accident/events accounts for
1. none of the symptoms / disability
2. a small proportion (≤ 25%) of the symptoms / disability
3. a moderate proportion (50%) of the symptoms / disability
4. most (≥ 75%) of the symptoms / disability
5. all of the symptoms / disability
74
Appendix 3: Update on the implementation of recommendations of
the First Report of the Personal Injuries Commission (continued)
4
Relevant Medical History (including previous and subsequent accidents)
Nil relevant
Aggravation of pre-existing condition?
If yes, give nature of pre-existing condition
Give details of previous accident history, if any
Was pre-existing condition active/symptomatic before the accident?
Lifestyle Eects
Occupational
Recreational
Domestic/Personal
75Second and Final Report of the Personal Injuries Commission
5
Present Complaints
Clinical Findings on Examination
Clinical Description of eects of Claimant’s Illness/Accident/Disablement
Normal Mild Moderate Severe Profound
Mental Health
Learning/Intelligence
Consciousness/Seizure
Balance/Co-ordination
Vision
Hearing
Speech
Continence
Reaching
Manual Dexterity
Carrying
Bending/Lifting/Stooping
Sitting
Standing
Climbing Stairs
Walking
Anticipated treatment required into the future
76
Appendix 3: Update on the implementation of recommendations of
the First Report of the Personal Injuries Commission (continued)
6
Opinion/Comment/Latest Prognosis
Indicate the degree to which you feel the claimant’s symptoms/disability have been caused by the accident/event which is
the subject of this claim? Tick one box
Based on my assessment of the injury as described by the Claimant the accident/events accounts for
1. none of the symptoms/disability
2. a small proportion (≤ 25%) of the symptoms/disability
3. a moderate proportion (50%) of the symptoms/disability
4. most (≥ 75%) of the symptoms/disability
5. all of the symptoms/disability
Are further investigations required?
Yes No
Have all reasonable steps been taken to alleviate remaining symptoms/disability? Yes No
If no, please elaborate
Is a full recovery expected?
Yes No
Estimated time period to full recovery
Are late complications expected?
Yes No
Are further Specialist reports recommended?
Yes No
General Comments and Observations
Completed by
(It is the duty of the completing expert to assist the Court as to matters within his or her eld of expertise. This duty overrides any
obligation to any party paying the fee of the expert).
Name
Signature
Address
Qualications
Completion Date
77Second and Final Report of the Personal Injuries Commission
7
Neck Disability Index
(NDI developed by: Vernon, H. & Mior, S. (1991). The Neck Disability Index: A study of reliability and validity. Journal of Manipulative and
Physiological Therapeutics. 14, 409-415)
This questionnaire has been designed to give us information as to how your neck pain has aected your ability to manage in
everyday life. Please answer every section and mark in each section only the one box that applies to you. We realise you may
consider that two or more statements in any one section relate to you, but please just mark the box that most closely describes
your problem.
Section 1: Pain Intensity
I have no pain at the moment
The pain is very mild at the moment
The pain is moderate at the moment
The pain is fairly severe at the moment
The pain is very severe at the moment
The pain is the worst imaginable at the moment
Section 2: Personal Care (Washing, Dressing, etc.)
I can look after myself normally without causing extra pain
I can look after myself normally but it causes extra pain
It is painful to look after myself and I am slow and careful
I need some help but can manage most of my personal care
I need help every day in most aspects of self care
I do not get dressed, I wash with diculty and stay in bed
Section 3: Lifting
I can lift heavy weights without extra pain
I can lift heavy weights but it gives extra pain
Pain prevents me lifting heavy weights o the oor, but I can manage if they are conveniently placed, for example on a table
Pain prevents me from lifting heavy weights but I can manage light to medium weights if they are conveniently positioned
I can only lift very light weights
I cannot lift or carry anything
Section 4: Reading
I can read as much as I want to with no pain in my neck
I can read as much as I want to with slight pain in my neck
I can read as much as I want with moderate pain in my neck
I can’t read as much as I want because of moderate pain in my neck
I can hardly read at all because of severe pain in my neck
I cannot read at all
Section 5: Headaches
I have no headaches at all
I have slight headaches, which come infrequently
I have moderate headaches, which come infrequently
I have moderate headaches, which come frequently
I have severe headaches, which come frequently
I have headaches almost all the time
Section 6: Concentration
I can concentrate fully when I want to with no diculty
I can concentrate fully when I want to with slight diculty
I have a fair degree of diculty in concentrating when I want to
I have a lot of diculty in concentrating when I want to
I have a great deal of diculty in concentrating when I want to
I cannot concentrate at all
78
8
Section 7: Work
I can do as much work as I want to
I can only do my usual work, but no more
I can do most of my usual work, but no more
I cannot do my usual work
I can hardly do any work at all
I can’t do any work at all
Section 8: Driving
I can drive my car without any neck pain
I can drive my car as long as I want with slight pain in my neck
I can drive my car as long as I want with moderate pain in my neck
I can’t drive my car as long as I want because of moderate pain in my neck
I can hardly drive at all because of severe pain in my neck
I can’t drive my car at all
Section 9: Sleeping
I have no trouble sleeping
My sleep is slightly disturbed (less than 1 hr sleepless)
My sleep is mildly disturbed (1-2 hrs sleepless)
My sleep is moderately disturbed (2-3 hrs sleepless)
My sleep is greatly disturbed (3-5 hrs sleepless)
My sleep is completely disturbed (5-7 hrs sleepless)
Section 10: Recreation
I am able to engage in all my recreation activities with no neck pain at all
I am able to engage in all my recreation activities, with some pain in my neck
I am able to engage in most, but not all of my usual recreation activities because of pain in my neck
I am able to engage in a few of my usual recreation activities because of pain in my neck
I can hardly do any recreation activities because of pain in my neck
I can’t do any recreation activities at all
Score: /50 Transform to percentage score x 100 = %points
Scoring: For each section the total possible score is 5: if the rst statement is marked the section score = 0, if the last statement
is marked it = 5. If all ten sections are completed the score is calculated as follows: Example:16 (total scored)
50 (total possible score) x 100 = 32%
If one section is missed or not applicable the score is calculated: 16 (total scored)
45 (total possible score) x 100 = 35.5%
Minimum Detectable Change (90% condence): 5 points or 10 %points
Visual Analogue Scale (VAS) for pain
The VAS for pain consists of a 10cm line with two end-points representing ‘no pain’ and ‘pain as bad as it could possibly be’.
Patients with WAD are asked to rate their pain by placing a mark on the line corresponding to their current level of pain.
The distance along the line from the ‘no pain’ marker is then measured with a ruler giving a pain score out of 10.
No pain Pain as bad as it could possibly be
0 1 2 3 4 5 6 7 8 9 10
Appendix 3: Update on the implementation of recommendations of
the First Report of the Personal Injuries Commission (continued)
79Second and Final Report of the Personal Injuries Commission
Appendix 4: Extract from Addendum to the Report of the
Cost of Insurance Working Group on the Cost of Motor
Insurance on the subject of Telematics - January 2018
Introduction
The Report on the Cost of Motor Insurance (“Motor
Report”) considered the use of telematics to benet
consumers from a road safety perspective with a
particular focus on exploring its potential to make the
motor insurance market more aordable to younger
people. Insurance Ireland were asked to review the
current use of telematics by industry and prepare a report
for the Cost of Insurance Working Group (“Working
Group”) by the end of 2017. As part of its implementation
of the Motor Report, as well as the development of its
Report on the Cost of Employer Liability and Public
Liability insurance, the Working Group has engaged with
the Personal Injuries Commission (“PIC”). One of the
issues of common interest to the Working Group and the
PIC has been how to tackle fraud and exaggeration within
the personal injuries area. The fraud related
recommendations in the Employer Liability and Public
Liability Report are supported by the PIC. However, there
was also a view expressed by the PIC that telematics
could play a major role in combating personal injury fraud
in a motor insurance context, and the Working Group
concurred with this general idea. A more detailed
perspective on the matter is set out below.
Use of Telematics to combat motor
insurance fraud
It is hardly surprising that innovations in technology have
an important role to play in bringing down the cost of
insurance and the cost of motor insurance in particular.
Like all information technology, what today seems novel
and pioneering in the case of telematics may shortly be
seen as essential in the eort to improve safer driving and
combat fraud, thereby ensuring availability of motor
insurance at more competitive prices. The Working Group
and the PIC believe that telematics has the potential to
play an important role by improving road safety, reducing
fraudulent claims and by deterring the bringing of such
claims. It is also an opportunity to identify risk before any
serious incident has occurred and potentially deal with it.
Telematics may best be summarised as the use of devices
from which real-time vehicle telemetry data can be
transmitted to a central organisation where it can be
harvested, speedily analysed and reliably interpreted. The
technology is varied and will in broad terms give the
‘controller’ an opportunity to identify risk and, where an
incident has occurred, provide the real tools to establish
its authenticity. In simple terms the technology involves
tting into a motor vehicle a “black box” device which
monitors and communicates data on the behaviour of the
vehicle. The data includes information in respect of speed,
positional and accelerometer measurements, locations
visited, braking behaviour, multiple impacts, swerving and
a wide range of other information which permits driver
safety standards to be improved and, in the case of motor
accidents, provides an in-depth snapshot of what
occurred. This can permit identication of fraud and
collusion by one or more of parties involved in a road
trac incident. Telemetry data, when combined with
predictive analytics, can allow insurers to more accurately
determine claim values which should in turn improve their
reserving methodology and assist with calculation of their
liabilities. This in turn allows insurers to identify individual
risk and price correctly.
In the UK market a 20% increase in policies providing
“black box cover” was noted in the year 2016. A 2015
report from ABI Research in the UK suggested that the
number of drivers monitored by telematics could reach 89
million globally by end 2017. The cost of installing such a
device (which is separate from the vehicle’s own I.T. and
electronics) is modest at around €100 – €150 but
dependent on individual suppliers. In some cases, the
initial cost can be a lot less than this with a monthly cost
being attributed to the vehicle insurance policy that again
accurately identies individual risk and in turn individual
pricing.
The technology is being actively pursued by a number of
insurers in the Irish market at present. Eorts are directed
in the main at younger drivers between the ages of 18 –
25 who, unless opting for a “black box policy”, may be
unable to obtain insurance at an aordable rate. High-risk
drivers outside of the younger driver age bracket who
wish to demonstrate a reduced level of risk and the
general low mileage driver who wishes for a properly
priced policy should also be considered. Digital integration
to provide a fuller oering, e.g. phone apps, should
improve supply chain eciencies and provide an
appropriate digital channel for the insurer to communicate
with their policyholder. Insurers should consider the
potential benets in terms of engaging with and retaining
their customers. In turn the customer is given a readily
accessible channel to liaise with their insurer throughout
the life of the policy and not just at renewal.
If the use of telematics is signicantly increased, insurers
and consumers will then enjoy the sort of protection
which CCTV provides on buildings and shop premises,
both in terms of deterring dishonest behaviour and in
uncovering it when it has occurred. It should result in the
lowering of premiums for drivers who drive within the law
and the terms of their motor policy. This is the obvious
quid pro quo which will persuade the motorist to opt for
“black box insurance” as a standard feature of their use of
motor vehicles.
80
Appendix 4: Extract from Addendum to the Report of the Cost of
Insurance Working Group on the Cost of Motor Insurance on the
subject of Telematics - January 2018 (continued)
Insurance Ireland have not yet conducted any surveys on
how marketable telematics may be in the Irish market but
there has been a growing determination among some Irish
member insurers to bring forward the use of the
technology as a condition of insurance contracts. The
Working Group and PIC believe that as a rst step insurer
should explore the potential of telematics further including
educating road users about its benets and at the same
time ascertain what level of acceptance may be likely on a
voluntary basis. The two groups believe that the primary
burden of developing awareness and acceptance of the
technology must rest with insurers who have the means
to conduct market studies and surveys in terms of the
likely response of Irish motorists to the benets of the
technology.
Privacy Concerns
While obvious concerns on privacy issues may arise from
the deployment of telematics in motor vehicles, these may
be addressed by tailoring any individual policy to the
requirements and limitations demanded by the insured
motorist when a policy is incepted. It is open to insurers
to specically provide a term or representation in any
insurance policy that the use of information gleaned from
telematics will be conned exclusively to such information
as derives from an accident or claim and nothing more.
Other motorists may prefer a condition which permits
their insurer to access all information derived from
telematics, particularly when they believe they are good
and safe drivers whose record over a 12-month period
may entitle them to be considered for a further reduction
in premium. In short, a “stepped” or “gradualistic”
introduction of the technology in co-operation with Irish
road users may suggest itself as the preferred option in
the short term.
Court Proceedings
Ultimately, should there be a signicant increase in the
uptake of telematics by policyholders, a signicant
educational programme for judges and practitioners
unaware of telematics technology could be launched. For
instance telematics has particular benets which may
assist the judiciary in the resolution of cases where fraud
is in issue. For solicitors, the technology may help weed
out the occasional fraudulent claim from the vast majority
which are genuine. In summary, the use of telematics has
the potential to create substantial savings can in litigation
costs if implemented to a sucient level.
Recommendation
It is recommended that Insurance Ireland and the
insurance industry prepare a report on what can be done
to increase the use of telematics in the Irish market with a
view to combatting fraud. As part of this exercise, they
should research what is happening in other countries and
extract what lessons can be learned for the Irish market.
This Report should be submitted to the Working Group by
1 September 2018.
81Second and Final Report of the Personal Injuries Commission
Appendix 5: Overview of Data Sought
and Received
Data received and requested
Insurance Ireland – In addition to Irish data, European
data was requested by the PIC Secretariat from Insurance
Ireland. This data was later discussed at a PIC meeting in
order for the PIC to gain a better understanding of the
exact nature of the data and the claims environment it
dealt with. It was conrmed that the data received, was
based on one company’s experience. This company deals
with 700,000 claims per annum. The information was
received from claims handlers operating in eight European
jurisdictions. The information was provided to the
independent consultants (KPMG) engaged by the DBEI on
behalf of the PIC, for analysis. However, they concluded
that they would not be able to make any meaningful
comparisons to the European data (excluding UK) as this
information was not provided or available at a suciently
granular level. Furthermore, they did not consider it
appropriate to include the European data in the
benchmarking exercise as it would be based on one single
insurer only. Insurance Ireland also provided contact
details and information from their sister federations in
Canada and Australia, The Insurance Bureau of Canada
and The Insurance Council of Australia.
The Law Society of Ireland – The Law Society provided
contact details for their counterparts in a number of
countries and states; the United States, Australia, Austria,
Cyprus, New Zealand, Norway, Slovenia, Slovakia,
Switzerland, Sweden, Denmark, Finland, Estonia,
Lithuania, Victoria, Australia, New South Wales, Australia,
Scotland, The Netherlands and Germany. The PIC
Secretariat issued to all the contacts provided for these
countries, a questionnaire regarding personal injury
compensation payments and costs. Replies were received
from the Law Societies in Sweden, Denmark, Austria,
Finland, Netherlands and Slovenia. These Societies
provided useful details regarding their national personal
injury systems, however they were unable to provide
statistical data.
The Motor Insurers Bureau of Ireland – The MIBI
submitted the results of a questionnaire issued by them to
their counterparts in 18 countries. This provided
information on compensation systems in place in other
jurisdictions but was not suciently granular for use in a
benchmarking study. Responses were provided from the
MIBI’s sister guarantee funds in Belgium, Bulgaria, An
anonymised Central European Country, Denmark, Estonia,
Finland, France Germany, Hungary, Italy, Latvia, Lithuania,
Netherlands, Poland, Slovak Republic, Sweden, UK, and
Norway.
Enterprise Rent-a-Car – Enterprise Rent-a-Car (ERAC)
oered to assist the PIC in May 2017 with data on
European compensation awards. They met with the PIC
Chairperson and submitted a two-page set of bar charts
benchmarking Irish awards for ‘whiplash’/soft tissue
injury with European awards. No raw data to support the
submission was supplied. The PIC Secretariat wrote to
ERAC following the meeting, requesting more detailed
data but ERAC advised that they were unable to provide
this without the provision of any external funding to
complete an exercise or analysis.
Irish embassies abroad – Correspondence was issued by
the PIC Secretariat to Irish embassies in Italy, Spain,
France, Germany, Sweden, Norway, Canada, New Zealand
and Australia to seek contact details of the relevant
national departments and agencies who deal with PI
claims. Limited general information was received from a
number of embassies. None of the embassies contacted
were in a position to supply any data that could be used in
the benchmarking exercise.
Publications – The Book of Quantum, the UK Judicial
Studies Board Guidelines, and The Green Book -
Guidelines for the Assessment of General Damages in
Personal Injury Cases in Northern Ireland, the Baremo, the
Schmerzengeldtabelle, and local Italian tables were
obtained and are referred to in this report.
82
Appendix 6: Extracts and Examples of Tables
The following are two extracts from Boletin Ocial Del Estado establishing the new Spanish Baremo. The horizontal line
represents the injury’s points on the invalidity scale, the vertical line represents the age of the claimant
83Second and Final Report of the Personal Injuries Commission
84
Appendix 6: Extracts and Examples of Tables (continued)
The following is an extract from TABELLA DEL DANNO BIOLOGICO DI LIEVE ENTITA from Italy, issued in July 2016. The
horizontal line represents the injury’s points on the invalidity scale, the vertical line represents the age of the claimant
1 2 3 4 5 6 7 8 9
1 790,35 1738,77 2845,26 4109,82 5927,63 8061,57 10511,66 13277,88 16360,25
2 790,35 1738,77 2845,26 4109,82 5927,63 8061,57 10511,66 13277,88 16360,25
3 790,35 1738,77 2845,26 4109,82 5927,63 8061,57 10511,66 13277,88 16360,25
4 790,35 1738,77 2845,26 4109,82 5927,63 8061,57 10511,66 13277,88 16360,25
5 790,35 1738,77 2845,26 4109,82 5927,63 8061,57 10511,66 13277,88 16360,25
6 790,35 1738,77 2845,26 4109,82 5927,63 8061,57 10511,66 13277,88 16360,25
7 790,35 1738,77 2845,26 4109,82 5927,63 8061,57 10511,66 13277,88 16360,25
8 790,35 1738,77 2845,26 4109,82 5927,63 8061,57 10511,66 13277,88 16360,25
9 790,35 1738,77 2845,26 4109,82 5927,63 8061,57 10511,66 13277,88 16360,25
10 790,35 1738,77 2845,26 4109,82 5927,63 8061,57 10511,66 13277,88 16360,25
11 786,40 1730,08 2831,03 4089,27 5897,99 8021,26 10459,10 13211,49 16278,44
12 782,45 1721,38 2816,81 4068,72 5868,35 7980,95 10406,54 13145,10 16196,64
13 778,49 1712,69 2802,58 4048,17 5838,71 7940,65 10353,98 13078,71 16114,84
85Second and Final Report of the Personal Injuries Commission
The following is an extract from the most recent edition of the Schmerzensgeldtabelle, the German publication which
provides examples of court decisions where awards for soft-tissue (‘whiplash’) injury claims were made.
86
Appendix 7: Comparative tables on OECD Statistics on Ination (Consumer
Price Index) and Gross Domestic Product (GDP) from countries referred to
in Chapter 3 - Report on Alternative Compensation Systems and Resolution
Models
https://data.oecd.org/price/ination-cpi.htm - accessed 10/07/18
Ination (CPI)
Total, Annual growth rate (%) Oct 2017 to Jun 2018
l Ination (CPI)
l Total
l Annual growth rate (%)
l Oct 2017 – Jun 2018
l Source: Prices: Consumer prices - complete database
Location q
q
Oct-
2017
q
Nov-
2017
q
Dec-
2017
q
Jan-
2018
q
Feb-
2018
q
Mar-
2018
q
Apr-
2018
q
May-
2018
q
Jun-
2018
Canada 1.39 2.10 1.87 1.70 2.16 2.31 2.22 2.22
France 1.06 1.18 1.19 1.33 1.18 1.56 1.64 2.02
Ireland 0.60 0.50 0.40 0.20 0.50 0.20 -0.40 0.40
Italy 1.00 0.90 0.90 0.89 0.50 0.79 0.49 0.99 1.38
Netherlands 1.33 1.50 1.25 1.46 1.21 1.02 1.11 1.74
OECD - Total 2.19 2.37 2.32 2.17 2.21 2.26 2.26 2.58
Spain 1.57 1.67 1.11 0.57 1.07 1.21 1.08 2.05
Sweden 1.69 1.87 1.74 1.58 1.61 1.90 1.73 1.90
United Kingdom 2.80 2.80 2.70 2.70 2.50 2.30 2.20 2.30
United States 2.04 2.20 2.11 2.07 2.21 2.36 2.46 2.80
https://data.oecd.org/gdp/quarterly-gdp.htm#indicator-chart – accessed 10/07/2018
87Second and Final Report of the Personal Injuries Commission
Quarterly GDP
Total, Percentage change, previous period, 2010 – 2016
Data table for: Quarterly GDP, Total, Percentage change, previous period, 2010 – 2016
Location q q 2010 q 2011 q 2012 q 2013 q 2014 q 2015 q 2016
Australia 2.47 2.67 3.93 2.22 2.54 2.51 2.57
Canada 3.08 3.14 1.75 2.48 2.86 1.00 1.41
France 1.95 2.19 0.31 0.58 0.96 1.11 1.17
Germany 4.09 3.65 0.50 0.48 1.93 1.75 1.94
Ireland 1.80 2.98 0.04 1.64 8.33 25.56 5.14
Netherlands 1.34 1.55 -1.03 -0.13 1.42 1.96 2.19
New Zealand 1.67 1.90 2.56 2.23 3.57 3.55 3.98
OECD - Total 2.98 2.03 1.35 1.49 2.19 2.56 1.80
Spain 0.01 -1.00 -2.93 -1.71 1.38 3.43 3.27
Sweden 5.99 2.66 -0.29 1.24 2.60 4.52 3.23
United Kingdom 1.71 1.64 1.45 2.05 2.95 2.35 1.79
United States 2.53 1.60 2.22 1.68 2.57 2.86 1.49
88
89Second and Final Report of the Personal Injuries Commission
90
Personal Injuries Commission
Department of Business, Enterprise and Innovation
Earlsfort Centre, Lower Hatch Street,
Dublin 2, D02 PW01
