by Zoë Kidney July-27-2022 in Healthcare Law
The High Court has delivered a recent judgment in Delaney v the Personal Injuries Assessment Board & Others[1] which outlines the legal basis for the assessment of personal injuries by reference to the Personal Injury Guidelines rather than the Book of Quantum.
Background
On 12 April 2019, the applicant fell when walking on a public footpath in County Waterford. The applicant claimed that she was caused to suffer a grazed knee and fracture of the tip of her right lateral malleolus (ankle) as a consequence of an unevenness on the footpath. Her orthopaedic surgeon advised that apart from swelling, she would have no significant long-term injury.
The Plaintiff was advised that based on the Book of Quantum her injuries would attract general damages in the region of €18,000 - €34,000. However, the Personal Injuries Assessment Board (“PIAB”) assessed general damages in the sum of €3,000. Meenan J stated that this significant reduction in the value of the applicant’s claim was due to the fact that the Book of Quantum no longer applied, rather the Personal Injury Guidelines (“the Guidelines”) did.
Challenge
In these proceedings, the applicant challenged the legal basis for the drawing up and passing of the Guidelines. She also maintained that PIAB erred in law in assessing the value of her injuries under the Guidelines and not the Book of Quantum.
Judgment of the High Court
The High Court concluded that the applicant was not entitled to any of the reliefs which she sought. It held that there are clear, well established, principles for awarding general damages and it cited with approval a passage by Irvine J. in the Court of Appeal in Nolan v Wirenski[2] as follows:
“Principle and authority require that awards of damages should be (i) fair to the plaintiff and the defendant; (ii) objectively reasonable in light of the common good and social conditions in the State; and (iii) proportionate within the scheme of awards for personal injuries generally. This usually means locating the seriousness of the case at an appropriate point somewhere on a scale which includes everything from the most minor to the most serious injuries.”
The Court held that Section 90 of the Judicial Council Act 2019 sets out clearly the principles and policies that were to be applied and followed by the Personal Injuries Guidelines Committee in drawing up the Guidelines. In drawing up the Guidelines, the Committee methodically followed the principles and policies as directed by the Oireachtas in the said Act. The Committee also took expert advice, both economic and legal, as was provided for. The Committee was not mandated to reduce the level of awards for less serious injuries no more than it was mandated to increase the level of awards for catastrophic injuries. The Committee was also entitled to fix levels of awards having regard to the level of awards in other jurisdictions.
The Court also held that the Committee has to look not only at the level of awards but also the basis for such awards. The Committee must look at the “principles” applied by the Superior Courts in the assessment of damages. These principles have been set out clearly in passages in judgments given by the Court of Appeal in Nolan v Wirenski (supra) and the Supreme Court in Kearney v McQuillan and the North Eastern Health Board (No. 2)[3] and Morrissey v HSE and Ors.[4]
The High Court found that the statutory requirement that a court, in assessing damages in a personal injuries action, shall have regard to the Guidelines is not an encroachment on judicial independence as there is provision for a court to depart from the Guidelines on giving reasons. Judicial independence, together with expertise and experience in the awarding of damages, meant the judiciary was an appropriate body to draft and adopt the Guidelines.
The applicant submitted that the enactment into law of the Guidelines amounted to a retrospective interference of certain rights vested in her. Meenan J opined that the applicant made this submission because there has been a reduction in the relevant level of damages between the Book of Quantum and the Guidelines. Meenan J pointed out in his judgment that the Guidelines were accompanied by a report from the Committee which noted that the Guidelines have resulted in a reduction in damages available in lower and middling injuries, while those suffering catastrophic injuries will receive a modest uplift in their award of general damages.
The Court held that the applicant did not have a right to a particular sum as may be provided for in the Book of Quantum. The applicant’s constitutional rights of property, bodily integrity and equality did not encompass a right to a particular sum of damages but, rather a right to have her damages assessed in accordance with well-established legal principles. Meenan J said that the effect of the application of these principles is that the level of damages varies over time.
The applicant maintained that PIAB ought to have assessed her injury using the Book of Quantum. Following the adoption of the Guidelines, an amendment was made to s. 20 (5) of the Personal Injuries Assessment Board Act 2003 which stipulates that in assessing damages for personal injuries, assessors shall have regard to the personal injuries guidelines and where they depart from those guidelines, state the reasons for such departure.
The High Court reached the conclusion that in making its assessment on 13 May 2021, the Board was obliged to follow the provisions of s. 20 (5) and make the assessment of the applicant’s claim under the Guidelines and not the Book of Quantum. In doing so, the Board acted in accordance with the relevant provisions of the Personal Injuries Assessment Board Act 2003 (as amended).
Conclusion
In refusing to grant the reliefs sought by the applicant, the High Court has provided welcome clarification in relation to the legal basis for the assessment of personal injuries by reference to the Personal Injury Guidelines rather than the Book of Quantum.
Costs
In a costs ruling on 22 July 2022, the Court stated that it was satisfied that this case was brought in the public interest, was of general public importance and raised novel issues concerning the application of principles on delegated legislation to the Judicial Council Act 2019. The Court ruled that Ms Delaney was therefore entitled to 60% of her legal costs against Ireland and the Attorney General, noting she had not sought costs against the Judicial Council and the Personal Injuries Assessment Board.
[1] [2022] IEHC 321 [2021 No. 641 JR]
[2] [2016] 1 I.R. 461
[3] [2012] IESC 43
[4] [2020] IESC 6
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About the Author
Zoë Kidney
Zoë is a solicitor in the healthcare team at Hayes Solicitors. She works primarily in healthcare litigation, defending clinical negligence claims against public hospitals and private clinicians. Zoë is experienced in representing clients in the Circuit Court, High Court and Court of Appeal.