Finding that guidelines slashing personal injury awards has legal effect ‘of systemic importance’ - Supreme Court

The Supreme Court has delivered a landmark ruling that judge-approved guidelines slashing awards for mainly minor personal injuries have legal effect and are legally binding.

Mr Justice Peter Charleton, who presided over the seven-judge court, said the result of Bridget Delaney’s case will affect thousands of personal injury cases currently awaiting judicial analysis “and multiples of that” into the future.

“The case is thus of systemic importance,” he said.

The majority decision means the guidelines, which became operational in April 2021, are legally binding but any changes to them will require legislation. The guidelines are currently under review by the Judicial Council and it is believed amendments may be proposed.

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The Supreme Court has indicated the guidelines should only be departed from where there is no reasonable proportion between them and the award that a judge independently believes, for stated and properly explained reasons, they should issue.

[ Analysis: Clarification of legal status of personal injury guidelines turns spotlight on insurers ]

In separate judgments on Tuesday, the court ruled by four to three that section 7.2.g of the Judicial Council Act 2019 giving power to the Judicial Council to make guidelines is unconstitutional in its present form. The guidelines amounted to a form of “hard” law and the making of them was contrary to the independence of the judiciary, the majority held.

Mr Justice Gerard Hogan said, while he “completely” supported the idea of guidelines as they lead to legal certainty and predictability, lower costs and “greater efficiencies”, the judiciary could not be invested with power to make guidelines which have the effect of altering the substantive law.

However, he was among six of the seven judges who held the guidelines were subsequently independently ratified by the Oireachtas, and given legal effect, by the provisions of another Act – the Family Leave and Miscellaneous Provisions Act, which came into force on April 24th, 2021.

The other five were Mr Justice Charleton, Mr Justice Brian Murray, Mr Justice Maurice Collins, Ms Justice Máire Whelan and Ms Justice Mary Faherty. Mr Justice Robert Haughton dissented.

A majority of four rejected Ms Delaney’s claim she had vested property or personal rights to have her application for damages for an ankle injury assessed under earlier guidelines by either the Personal Injuries Assessment Board (PIAB) or by a court. The dissenters were Mr Justice Hogan, Ms Justice Whelan and Ms Justice Faherty, who considered Ms Delaney was entitled to a fresh assessment of her damages claim by reference to earlier guidelines.

The court has indicated, given its findings and the importance of the case, it is prepared to grant Ms Delaney her full legal costs in the High Court and Supreme Court.

From Co Waterford, Ms Delaney initiated her challenge after her claim for an ankle injury was assessed at €3,000 under the guidelines. She argued it was worth up to €34,000 under earlier guidelines.

In a personal injuries action against Waterford City and County Council, she claimed, due to the council’s negligence, she fractured her ankle after tripping and falling on a public footpath in Dungarvan on April 12th, 2019. She required medical treatment and physiotherapy, and used a walker boot for several weeks.

After she submitted an application to the PIAB in June 2019, it used the guidelines to assess her claim in May 2021 at €3,000. In High Court proceedings, Ms Delaney argued her claim should have been assessed under the guidelines’ predecessor, the book of quantum, at between €18,000 and €34,000.

She claimed the PIAB acted outside its powers and breached her rights in assessing her claim under the guidelines and the Judicial Council acted outside of its powers in adopting the guidelines.

After the High Court rejected her case, the Supreme Court agreed to hear an appeal due to the importance of the issues raised. Because some Supreme Court judges hold positions with the Judicial Council, the appeal was heard by a court comprising four Supreme Court and three Court of Appeal judges.

The court reserved judgment in March 2023 but asked the parties last month for submissions relating to any impact of the 2021 Act providing for amendments to the Judicial Council Act 2019 and the Personal Injuries Assessment Board Act 2003 to make further provision in relation to the operation of the guidelines.