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July 15, 2004


Ireland adopts scheduled damages

For some years it looked as if the major English-speaking countries would inevitably see their legal systems "Americanize" in the direction of ever-wider litigation, but the trend may now be reversing itself. Not only has Australia enacted significant reforms to curb litigation, and not only is a national debate along the same lines under way in Great Britain, but Ireland -- another country that had been thought to be headed down the American path -- recently adopted a far-ranging set of reforms in the area of damages which is expected to curb litigation substantially. It's the system sometimes known as "scheduled" damages: henceforth, the compensation value of a broken arm or leg (aside from lost wages and other economic damages) will be determined with reference to a schedule or table known as the "Quantum" which will serve as an indicated settlement figure in cases of uncontested liability and as a recommendation of appropriate damages to the courts in cases which are litigated. Quantum damages (which will retain some flexibility to account for the details of particular injuries and injured persons) are intended to be set at the same average level as the Irish courts are currently handing out for each variety of serious injury; the difference is that there will be no occasion (or at least less of an occasion) for dueling attorneys to argue damages afresh in each case in hopes of getting something higher or lower than the norm. The Quantum levels are being determined by a newly established Personal Injuries Assessment Board (PIAB). ("PIAB releases Book of Quantum", Politics.ie, Jun. 3; "PIAB activated by Tanaiste", RTÉ Business, May 31; "PIAB publishes Book of Quantum", Business World, Jun. 3; "ISME welcomes PIAB", Business World, May 31).

The concept of scheduled damages is widely employed in non-English-speaking countries of Europe; in the United States, it is familiar only through its use in workers' comp systems, while being assiduously avoided by courts hearing conventional liability suits. Among the results is that courts within a given state (let alone those of different states) dispense a wide range of different levels of compensation over a given injury.

Why isn't there more interest in scheduled damages here? Business defendants arguing for tort relief, of course, naturally tend to prefer caps; unlike caps, scheduled damages act as a floor and not just a ceiling, which means that they would act to raise damages levels in some situations (jurisdictions with "stingy" jury pools, some cases with unsympathetic plaintiffs). From the standpoint of society as a whole, on the other hand, there is every reason to believe that the gains in efficiency (less scope for litigation) and horizontal equity (the treating of like cases alike) would be significant, perhaps compelling advantages of a scheduled damages system.

Posted by Walter Olson at 12:35 AM | TrackBack (1)



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