Compensation for any form of disability suffered in an accident is being capped at €600,000, under fresh proposals to streamline damages awarded by civil courts.

The proposals will be put up for a two-month consultation soon.

For the first time, the proposals put in black on white, in a legal framework, a set of guidelines for compensation awarded for specific disabilities, such as loss of limbs and organs or even the triggering of conditions such as epilepsy.

In the long and very detailed schedule, loss of sight from one eye, for instance, is valued as 25 per cent disability and if the person is blinded that goes up to 85 per cent.

Similarly, the loss of an arm below the elbow is considered to be equal to a 45 - 50 per cent disability. But if the entire arm is lost, shoulder included, that would rise to 65 per cent.

There are also some curiosities that might attract comments in the consultation process, such as the way the guidelines related to the reproductive organs.

The loss of one ovary will constitute a six per cent disability, going up to 12 per cent if both are lost. The loss of a single testicle is also considered to be equal to a six per cent disability but if both are lost, this rises to 15 per cent. In both cases, if the loss leads to infertility of a previously healthy person, the compensation will be equivalent to a 25 per cent disability.

The amount due by way of damages is calculated on the basis of a formula that takes into account the percentage of disability that will be determined according to the new regulations, the income of the person in question, his age and other factors.

The principle is similar to that applied by the courts so far but, to date, the judiciary has had to rely on case law rather than clear guidelines and this made for inconsistent decisions.

Lawyer George Hyzler, who was appointed by the Justice Ministry to oversee a two-month consultation process on this "long overdue" draft law, said the amendments would fill a vacuum that would address the uncertainty and, at times, inconsistencies resulting from the system in place.

The changes do not mean the courts will have no discretion, Dr Hyzler is keen to point out: "What is being proposed is not an automated system".

"A judge could vary the applicable percentage of disability to reflect its relevance to the individual's job. For example, the case of a right-handed lawyer losing his left hand is not the same as that of a builder losing one of his hands. The changes should introduce an element of certainty and uniformity in the liquidation of damages."

Lawyers and insurance companies did not know where their clients stood and, therefore, whether a claim was worth pursuing in court or outside.

"Victims would have a better understanding of what they would be entitled to. This means that lawyers would be in a better position to give reliable advice and insurance companies would be able to make a more accurate provision for the amount payable. This should translate in less painful court cases and quicker out-of-court settlements."

A young professional earning €40,000 a year who has suffered a paralysis equivalent to 90 per cent disability would not be able to benefit from the full compensation of €1.2 million, provided for under the proposed guidelines because of the €600,000 capping. The amount is calculated with a formula

The proposals also introduce what is referred to as non-pecuniary damages, that is compensation that is not quantifiable, known in other jurisdictions as damages for pain and suffering or moral damages such as the loss of a father, a mother or a sibling. These damages are being capped at €200,000.

Non-pecuniary damages are being tied to the element of financial dependence, through which compensation can be extended to people who could prove they are financially dependent on someone who has been killed in an accident. This would include not only spouses but also persons who can prove they were being supported or had a right to be supported by the deceased.

The proposals are set to codify the case-law that has developed on the lines introduced in the landmark 1967 case in the names Michael Butler vs Peter Christopher Heard. That judgement had introduced a formula to arrive at compensation that represented a major departure from the system then in force, where damages were limited to a maximum of €2,800.

More stories from The Times in the News section.

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