So how and when will we know if these aims have been achieved given that they are likely to be confounded by the emerging impacts of inflation, possible recession and insurance capacity constraints. In particular, how will we disentangle the positioning of stakeholders and commentators to observe true progress?
Recognising that actual experience will lag behind the reforms and publicly curated and authoritative data will lag further behind the same it may yet before a number of years before we claim success.
So what are those sources? We have comprehensive and authoritative reporting from the National Claims Information Database (NCID) as complimented by the reporting of the Personal Injuries Resolution Board (PIRB).
The NCID compiles data collected by the CBI from insurance companies in Ireland with regards to private Motor Insurance, Employers Liability and Public Liability.
There is an annual obligation to collect this data, and since inception there have been three reports issued in November 2019, 2020, and 2021 on Motor Insurance and two reports on Employer and Public Liability, published in 2021 and 2022.
Due to the time lag with retrospective reporting, the most recent reports available only take the data as far as the end of 2020. As such it does not include any insights on the effect of the proposed reforms brought through since then; it does however make it abundantly clear what are the key issues and considerations targeted by those reforms.
From the data the stark and simplified analysis identifies that both the level of awards and the cost of making those awards need to be addressed. So far so simple however it is in tackling these that we confront both the individual propensity to claim and the readiness to bring such claims through costly litigation.
From the NCID data we see clear evidence of the readiness to litigate claims where, for non-damage claims, more than half of employer and public liability claims are litigated and more than a third of motor claims are litigated, as measured over the period 2015-2020 and reported in the latest Employer and Public Liability and Motor Insurance reports respectively. This becomes all the more striking when viewed through the lens of the value of non-damage claims settled, with over 70% of all claim amounts being resolved through litigation with the attendant costs and delays.
Furthermore, the costs of additional litigation far exceed the increased value in awards – what then is the cost-benefit of such litigation at both an individual and societal level?
In mandating the Judicial Council to establish the Personal Injuries Guidelines Committee, a key step was taken to review both the level and the consistency of general damages awarded. Important to note that the aim of reducing litigation is not to remove it entirely but rather to reshape it to focus on where it is most effective for all stakeholders.