Guidelines slashing minor injury payouts interfere with independence of courts, judges told

Guidelines slashing damages for many minor personal injuries by up to 50 per cent are being applied by the courts and the Personal Injuries Assessment Board (Piab) on the basis that they “mean what they say on the tin”, the Supreme Court has heard.

Bridget Delaney would have got about €18,000 for an ankle fracture under the previous guidelines, but the board valued her injury at €3,000 under the new guidelines, her counsel, Feichín McDonagh SC said.

He said the “conscription” of judges to prepare and approve of the guidelines amounted to an unconstitutional interference with judicial independence. He argued that the Judicial Council’s passing of the guidelines in March 2021 was a “legislative act cloaked in a veneer of judicial action”.

Shane Murphy SC, also for Ms Delaney, said the guidelines interfered with the independence of the courts and with his client’s rights. He said the right to sue is not a question of money but about “a vindication of rights”.

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The guidelines indirectly interfered with her rights to bodily integrity and to property as they involved an unjust attack on her right to sue and to an effective remedy, to have compensation assessed in accordance with the law of tort and the traditional administration of justice, he argued.

[ New law aimed at reducing number and costs of personal injuries claims comes into operation ]

The submissions were made in a packed Supreme Court on Tuesday at the opening of the appeal by Ms Delaney, from Dungarvan, Co Waterford, against the High Court’s dismissal of her challenge to the guidelines.

Taken against Piab, Ireland, the Attorney General and the Judicial Council, the appeal has major implications for the future handling of personal injury awards.

It concerns guidelines drafted by the Personal Injuries Guidelines Committee of the Judicial Council, as required by the Judicial Council Act 2019. After they were approved by a majority of the council, they came into effect in April 2021.

In his submissions, Mr McDonagh argued the committee was not entitled to prepare guidelines linking personal injury awards here to lower awards applying in England and Wales.

When Mr Justice Maurice Collins asked what difference exists between a broken leg in England and Ireland, counsel responded: “Why would the Supreme Court have regard to a former imperial power in valuing a leg?”

Judges are required to apply the guidelines unless exceptional circumstances justify a departure from them, he submitted.

[ Most Supreme Court judges conflicted for key personal injury guidelines appeal ]

Counsel agreed the guidelines do not specifically state there must be “exceptional” circumstances for departing from them.

When Mr Justice Gerard Hogan said nothing in the 2019 Act stops a court from disapplying the guidelines once it gives written reasons for doing so, Mr McDonagh said the effect of the guidelines is that they are reducing awards “across the board”, unless there are exceptional circumstances.

Even if a judge disagrees with a value given by the guidelines for a particular injury, the judge cannot award the sum they would have awarded before the guidelines came into effect, he said.

“We are faced with guidelines which have reduced damages to 40-50 per cent of what they were before 2021, and Piab and the courts have been applying them on the basis they mean what they say on the tin.”

[ Why personal injuries claims are plummeting in the High Court ]

In her personal injuries claim against Waterford City and County Council, Ms Delaney claimed that, due to the council’s negligence, she fractured a bone in her right ankle after she tripped and fell on a public footpath in Dungarvan on April 12th, 2019. She required medical treatment and physiotherapy, and was given a walker boot for several weeks, it was claimed.

In June 2019, she submitted a claim to the Piab. It assessed her claim in May 2021, under the guidelines, at €3,000. Ms Delaney argued her claim should have been assessed under the book of quantum, which the guidelines replaced, as between €18,000 and €34,000.

She argued the Piab acted outside its powers in assessing her claim under the guidelines, breached her rights to natural and constitutional justice, and the Judicial Council acted outside of its powers in adopting the guidelines.

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The appeal continues on Wednesday before the seven-judge court, comprising four Supreme Court judges – Mr Justice Collins, Mr Justice Hogan, Mr Justice Peter Charleton and Mr Justice Brian Murray – sitting with three Court of Appeal judges, Ms Justice Máire Whelan, Ms Justice Mary Faherty and Mr Justice Robert Haughton.