These decisions provide some insight into what is likely to develop within the personal injury arena in the future.
The High Court has dismissed the challenge to the Personal Injuries Guidelines brought by Bridget Delaney on all grounds. Mr Justice Charles Meenan ruled that the guidelines were lawfully adopted and that Ms Delaney had no right to have her application determined under the old book of quantum. In a costs ruling on 22 July 2022, Ms Delaney was awarded 60% of her costs against the State as the proceedings were brought in the public interest, were of general importance and raised novel issues concerning the application of principles on delegated legislation to the Judicial Council Act 2019.
In this case, the plaintiff injured her ankle after allegedly tripping on uneven ground on 12 April 2019. She submitted her application to the Personal Injuries Assessment Board (PIAB) in June 2019 and the case was assessed in May 2021, under the new guidelines. PIAB assessed the injury in the sum of €3,000 whereas Ms Delaney argued that under the Book of Quantum, her injuries would attract an award between €18,000-€34,000.
Ms Delaney’s legal team raised a number of arguments including:
- That the procedure in the Judicial Council Act under which the guidelines were approved is unconstitutional.
- That the requirement in the Act for the judiciary to vote on the guidelines amounts to judge-made law in breach of the separation of powers.
- That the guidelines breach her constitutional rights, including property rights and right of access to the court.
- That PIAB delayed some assessments to wait on the Guidelines taking effect.
Mr Justice Meenan dismissed the challenges against the Judicial Council, Ireland and the Attorney General and ruled that the guidelines were lawful. In relation to Judicial Independence the court emphasised that the amended Section 22 of the Civil Liability and Courts Act 2004 permitted a court to depart from the guidelines where reasons were given by the trial judge.
In relation to PIAB and any perceived delays on their part, the court found that the main cause of the delay was a result of the applicant’s x-rays not being forwarded to the Board until 13 April 2021. The court also noted that the applicant had the opportunity to make a full case to the Board, and it was noted that the applicant could submit any documents considered relevant to the claim. The court noted that this provision is very broadly worded and could include a professional view that in a particular case the guidelines ought not to be followed.
The court found that PIAB acted correctly and lawfully in accordance with the legislation. PIAB, unsurprisingly, have welcomed the judgment and it has been welcomed by insurers and other stakeholders, but the judgment provides leeway for departure from the guidelines where it is considered appropriate, therefore considerable uncertainty remains and this is likely to be the subject of future litigation on the guidelines.
The High Court also dismissed a judicial review brought by Tara Wolfe against the Personal Injuries Assessment Board on 17 June 2022. In this case, the applicant sought to quash the PIAB assessment on the basis that PIAB did not fulfil their obligation to have regard for the guidelines and to provide written reasons for how their applied the guidelines to her case.
The applicant was injured at work in December 2018. On 25 June 2021, PIAB assessed the applicant’s injuries in the sum of €11,000 for general damages. The applicant argued that in the absence of PIAB’s written reasoning she could not ascertain how they established that her back injury was her dominant injury, nor could she ascertain if her other injuries had been taken into account, and if they were, what uplift was applied. She could not therefore make an informed decision about the assessment within the twenty-eight day acceptance window afforded to her.
The applicant further submitted that this put her at risk of an adverse costs order under Section 51A of the 2003 Act as amended therefore restricting her constitutional right of access to the courts. Ms Justice O’Regan found that the statutory provisions placed no duty on PIAB to provide written reasons under Section 20 of the 2003 Act, unless PIAB departs from the guidelines. In relation to the applicant’s assertion that the potential for an adverse costs order restricts her constitutional right of access to the courts, the court found that such a status is not novel or exceptional, and noted that a similar risk would be run by litigant faced with a tender offer or Calderbank offer. The guidelines took effect from 24 April 2021 and apply to claims authorised by PIAB after that date. Earlier cases will continue to be assessed under the Book of Quantum.
Eva Bashford, Partner, commented: “These decisions provide some insight into what is likely to develop within the personal injury arena in the future. Given the comments in relation to PIAB in both judgments, I wouldn’t be surprised to see submissions to PIAB on quantum becoming the norm, although this could raise issues in terms of who drafts the submissions and legal fees for same. This could also have implications for PIAB, which may lead to further litigation, as this could stray into quasi-judicial territory.
“What is clear is that submissions to the trial judge from both parties will become the norm, and claimants will be making the case that a departure from the guidelines is warranted in the particular circumstances of their claim. In the short term, I would expect to see appeals in cases where there has been a departure from the guidelines and where there hasn’t been a departure. Until there is a reasonable body of caselaw outlining how the guidelines are being implemented across the courts, uncertainty will remain and as a result, there is likely to be an increase in cases progressing to hearing.”
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