On 6 March 2021, the Judicial Council approved the new Personal Injuries Guidelines which are intended to replace the Book of Quantum of 2016 when it comes to the assessment of compensation awards in personal injuries claims. See our recent blog post.
One of the most controversial aspects of the Book of Quantum was the level of awards it set for so-called whiplash or soft-tissue injuries.
The chart at the end of this post sets out in accessible format the guideline levels of whiplash compensation contained in both the soon-to-be-obsolete Book of Quantum and the Personal Injuries Guidelines, likely to be approved by cabinet shortly.
One of the most controversial aspects of the Book of Quantum was the level of awards it set for so-called whiplash or soft-tissue injuries.
The chart at the end of this post sets out in accessible format the guideline levels of whiplash compensation contained in both the soon-to-be-obsolete Book of Quantum and the Personal Injuries Guidelines, likely to be approved by cabinet shortly.
In the Book of Quantum, a “whiplash injury" is defined as "an over extension or sprain often suffered in a motor vehicle accident or high impact slip/trip/fall type of accidents."
Whiplash type injuries, says the Book of Quantum
involve a very minor sprain that heals within days or weeks or they can in extreme cases cause long lasting pain and permanent disability. Sometimes a neck strain can irritate or aggravate a pre-existing condition that may or may not have been treated before the accident. These can include disc lesions, spondylosis, osteoarthritis, spondylolisthesis.
The Personal Injuries Guidelines deal with neck injuries in a broader context and advise that the sub-category of claims concerning whiplash-type injuries, which are difficult to prove or disprove, require particularly careful investigation and assessment:
There is a wide range of neck injuries. Many are found in conjunction with back and shoulder problems. Some are grossly disabling involving significant ongoing pain and disability. Others are of modest duration and severity in terms of pain and their impact on quality of life. It is important that the award made be proportionate to the severity of the injury and proportionate to the level of awards guided for other more or less severe injuries identified in these guidelines. The assessment of damages for whiplash injuries requires particular care. Allegations of such injuries are easily made and not easily disproved. Medical experts are reliant on the honesty of claimants. The evidence relating to such a claim requires careful scrutiny.
The court should make its findings of fact on the issues of:
(i) Whether a whiplash injury was sustained; and,
(ii) if so, the nature and extent of the injury.
The Guidelines go on to say that "the court should avoid simply making a small award to avoid the necessity of making its findings on (i) and (ii) above."
The new Personal Injuries Guidelines go on to deal rather differently with whiplash and soft-tissue neck injuries than does the Book of Quantum, not only in terms of the levels of compensation awarded but also in the way the severity and types of neck injuries are categorized.
The most obvious difference between the two approaches relates to the amount of compensation that can be awarded, especially for minor whiplash injuries. Under the Book of Quantum there were two categories of award for minor whiplash injuries, one where the patient had substantially recovered and the other where the patient was expected to fully recover. The maximum guideline figures for the respective categories were €15,700 and €19,400.
The new Judicial Council guidelines tighten up the categories and specify periods of recovery in more detail as well as capping the guideline award for a "minor" whiplash-type neck injury where a substantial recovery occurs "within one to two years" at €12,000.
Section 2 of the Book of Quantum, called "Neck Injuries", deals exclusively with whiplash and soft-tissue neck injuries ranging from "minor soft tissue, whiplash injuries" up to what it calls "the most severe category" which includes injuries that will have "affected the structure of the neck and the discs, resulting in serious limitation of movement and the requirement for surgery." The Book of Quantum further includes in this "most severe" category situations where "little or no movement [is] regained on a permanent basis resulting in ongoing pain and stiffness with the necessity to wear a collar for long periods in the day."
Unlike the "Neck Injuries" section of the new Personal Injuries Guidelines, the similarly-titled chapter of the Book of Quantum does not deal with potentially more serious "hard-tissue" injuries relating to fractures of the discs of the cervical spine or damage to the neck vertebrae. Such injuries are dealt with to some extent in the Chapter 3 of the Book of Quantum, "Back and Spinal Injuries".
The Neck Injuries section of the new guidelines - dealt with in Part A of the chapter on "Orthopaedic Injuries" - goes beyond soft-tissue injuries to include very serious neck injuries right up to those associated with "incomplete paraplegia or resulting in permanent spastic quadriparesis" or injuries where the damage to the neck is so severe that it results in a situation where "despite the wearing of a collar 24 hours a day for a period of years, the neck could still not move, and severe headaches have proved intractable".
The chart below is intended to compare the new guidelines with the Book of Quantum in so far as they relate to whiplash and soft-tissue neck injuries only; so, because the category of "most severe neck injuries" in the new Personal Injuries Guidelines goes beyond soft-tissue injuries (to deal with incomplete paraplegia and so on), that category is not included in the chart. Obviously, neck injuries of that nature attract relatively high levels of compensation, ranging from €100,000 to €300,000.
The chart presents the descriptions of the injuries and symptoms as they appear in the new Judicial Council guidelines and in the Book of Quantum. It will be noted that the two documents do not precisely coincide in their categorization of the different injuries or in their use of terminology.
Whiplash type injuries, says the Book of Quantum
involve a very minor sprain that heals within days or weeks or they can in extreme cases cause long lasting pain and permanent disability. Sometimes a neck strain can irritate or aggravate a pre-existing condition that may or may not have been treated before the accident. These can include disc lesions, spondylosis, osteoarthritis, spondylolisthesis.
The Personal Injuries Guidelines deal with neck injuries in a broader context and advise that the sub-category of claims concerning whiplash-type injuries, which are difficult to prove or disprove, require particularly careful investigation and assessment:
There is a wide range of neck injuries. Many are found in conjunction with back and shoulder problems. Some are grossly disabling involving significant ongoing pain and disability. Others are of modest duration and severity in terms of pain and their impact on quality of life. It is important that the award made be proportionate to the severity of the injury and proportionate to the level of awards guided for other more or less severe injuries identified in these guidelines. The assessment of damages for whiplash injuries requires particular care. Allegations of such injuries are easily made and not easily disproved. Medical experts are reliant on the honesty of claimants. The evidence relating to such a claim requires careful scrutiny.
The court should make its findings of fact on the issues of:
(i) Whether a whiplash injury was sustained; and,
(ii) if so, the nature and extent of the injury.
The Guidelines go on to say that "the court should avoid simply making a small award to avoid the necessity of making its findings on (i) and (ii) above."
The new Personal Injuries Guidelines go on to deal rather differently with whiplash and soft-tissue neck injuries than does the Book of Quantum, not only in terms of the levels of compensation awarded but also in the way the severity and types of neck injuries are categorized.
The most obvious difference between the two approaches relates to the amount of compensation that can be awarded, especially for minor whiplash injuries. Under the Book of Quantum there were two categories of award for minor whiplash injuries, one where the patient had substantially recovered and the other where the patient was expected to fully recover. The maximum guideline figures for the respective categories were €15,700 and €19,400.
The new Judicial Council guidelines tighten up the categories and specify periods of recovery in more detail as well as capping the guideline award for a "minor" whiplash-type neck injury where a substantial recovery occurs "within one to two years" at €12,000.
Section 2 of the Book of Quantum, called "Neck Injuries", deals exclusively with whiplash and soft-tissue neck injuries ranging from "minor soft tissue, whiplash injuries" up to what it calls "the most severe category" which includes injuries that will have "affected the structure of the neck and the discs, resulting in serious limitation of movement and the requirement for surgery." The Book of Quantum further includes in this "most severe" category situations where "little or no movement [is] regained on a permanent basis resulting in ongoing pain and stiffness with the necessity to wear a collar for long periods in the day."
Unlike the "Neck Injuries" section of the new Personal Injuries Guidelines, the similarly-titled chapter of the Book of Quantum does not deal with potentially more serious "hard-tissue" injuries relating to fractures of the discs of the cervical spine or damage to the neck vertebrae. Such injuries are dealt with to some extent in the Chapter 3 of the Book of Quantum, "Back and Spinal Injuries".
The Neck Injuries section of the new guidelines - dealt with in Part A of the chapter on "Orthopaedic Injuries" - goes beyond soft-tissue injuries to include very serious neck injuries right up to those associated with "incomplete paraplegia or resulting in permanent spastic quadriparesis" or injuries where the damage to the neck is so severe that it results in a situation where "despite the wearing of a collar 24 hours a day for a period of years, the neck could still not move, and severe headaches have proved intractable".
The chart below is intended to compare the new guidelines with the Book of Quantum in so far as they relate to whiplash and soft-tissue neck injuries only; so, because the category of "most severe neck injuries" in the new Personal Injuries Guidelines goes beyond soft-tissue injuries (to deal with incomplete paraplegia and so on), that category is not included in the chart. Obviously, neck injuries of that nature attract relatively high levels of compensation, ranging from €100,000 to €300,000.
The chart presents the descriptions of the injuries and symptoms as they appear in the new Judicial Council guidelines and in the Book of Quantum. It will be noted that the two documents do not precisely coincide in their categorization of the different injuries or in their use of terminology.
New Judicial Council Guidelines |
Amount € |
Book of Quantum Guidelines |
Amount € |
Minor 1. Where a substantial recovery is made within six months. 2. Where a substantial recovery takes place between six months to one year. This bracket will also apply to short-term acceleration and/or exacerbation of pre-existing injuries, usually less than one year. 3. Injuries where a substantial recovery takes place within one to two years. This bracket will also apply to short term acceleration and/or exacerbation of pre-existing condition, usually between one and two years. |
500 to 3,000 3,000 to 6,000 6,000 to 12,000 |
Minor These injuries are minor soft tissue, whiplash injuries. Whilst the duration of symptoms will be of importance, there are also other factors that need to be considered when calculating the assessment. Such factors would include the nature of the neck injury, the intensity of the pain and extent of the symptoms, the presence of additional symptoms in the back or shoulder areas, the impact of the injuries on the persons ability to work and/or the extent of the treatment. |
Up to 15,700 (substantially recovered) Up to 19,400 (a full recovery expected) |
Moderate Injuries which may have accelerated and/or exacerbated a pre-existing condition over a shorter period of time, usually less than five years. This bracket will also apply to moderate soft tissue injuries where the period of recovery has been relatively protracted and where there remains an increased vulnerability to further trauma or permanent minimal symptoms |
12,000 to 23,000 |
Moderate These injuries would be moderate soft tissue injuries where the period of recovery has been protracted and where there remains an increased vulnerability to further trauma. Also within this bracket would be injuries which may have accelerated or exacerbated a pre-existing condition over a period of time, usually no more than five years. |
20,400 to 30,200 |
Severe and serious neck injuries 1. Cases involving soft tissue or wrenching type injury and disc lesion of the more severe type resulting in cervical spondylosis, serious limitation of movement, permanent or recurring pain, stiffness or discomfort and the possible need for further surgery with increased vulnerability to trauma. 2. Injuries involving less serious fractures and dislocations than set out in the below paragraph, but which nonetheless cause severe symptoms and/or pain which will be permanent or recurring 3. Injuries causing very severe symptoms from fractures or dislocations that may require spinal fusion, or severe damage to soft tissues and/or ruptured tendons leading to chronic conditions and significant disability of a permanent nature |
35,000 to 50,000 50,000 to 70,000 70,000 to 100,000 |
Moderately Severe These injuries involve the soft tissue or wrenching type injury of the more severe type resulting in serious limitation of movement, recurring pain, stiffness and discomfort and the possible need for surgery or increased vulnerability to further trauma. This would also include injuries which may have accelerated and/or exacerbated a pre-existing condition over a prolonged period of time, usually more than five years resulting in ongoing pain and stiffness. Severe and permanent The most severe category. These injuries will have also affected the structure of the neck and the discs, resulting in serious limitation of movement and the requirement for surgery. Little or no movement regained on a permanent basis resulting in ongoing pain and stiffness with the necessity to wear a collar for long periods in the day. |
34,400 to 52,200 44,600 to 77,900 |