BRIDGET DELANEY

Applicant

AND

THE PERSONAL INJURIES ASSESSMENT BOARD, THE JUDICIAL COUNCIL, IRELAND AND THE ATTORNEY GENERAL

Respondents

Although this case began in an unremarkable way- a slip and fall on a public footpath, it has culminated into a far-reaching constitutional claim. This Appeal involved a challenge to the constitutionality of the personal injuries guidelines adopted by the Judicial Council on 6 March 2021 and raised significant constitutional issues relating to the separation of powers and the independence of the judiciary.

Ms Delaney sustained an injury to her knee and to her ankle on 12 April 2019 when she fell on a public footpath. Ms Delaney believed her fall was caused by a defect in the footpath and she brought a personal injury action against the local authority. Her claim was received by the Personal Injuries Assessment Board (PIAB) on 4 June 2019.   Due to a number of factors, Ms Delaney’s claim was not assessed by PIAB until 14 May 2021.

In the interim, the Judicial Council had approved new guidelines for personal injury damages, which replaced the Book of Quantum on 6 March 2021. Under the Book of Quantum, which had been in place since 2004, Judges were guided based on their own previous decisions.  The new guidelines also address all claims for general damages for pain and suffering in respect of personal injuries and have resulted in much lower damages in most injury claims.

When Ms Delaney submitted her claim in 2019, the Book of Quantum provided that the range for general damages arising from minor fractures was €18,000-€34,900 and the range for moderate injuries was €34,000-€61,200. Whereas, under the new guidelines, Ms Delaney’s assessment was made in the sum of €3,000 (plus €937 for fees and expenses). Ms. Delaney did not accept the award and she received an authorisation to issue proceedings against the Local Authority, PIAB, Ireland and the Attorney General. The case against the Local Authority remains pending.

Ms Delaney argued that PIAB had erred in assessing her claim by reference to the Guidelines and they ought to have been assessed under the Book of Quantum. She also claimed that her constitutional rights had been impugned because the tight guidelines imposed by the Guidelines, limited the discretion of Judges to award her fair compensation. In doing so, she argued that this constituted an invasion of judicial power and violated the separation of powers and the independence of the judiciary.  Following a seven day hearing in the High Court, Mr Justice Charles Meenan refused all of the reliefs sought by Ms. Delaney.  Ms Delaney sought leave to appeal the High Court judgement to the Supreme Court.

A majority of 5:2 found against Ms. Delaney and her appeal was rejected.

A number of key points arise from this decision:

1. The Judicial Guidelines are legally binding and will remain in force in their current form. If a case has not been assessed by PIAB prior to 24 April 2021, or where proceedings have not been issued in advance of 24 April 2021, it is subject to assessment under the Guidelines.

2. The Courts can depart from the Guidelines where there is no reasonable proportion between the guidelines and the award which should otherwise be made, but they must state their reasons for this departure.

3. The delegation of Legislative Powers is permitted. A majority of the Supreme Court found that the Oireachtas could and was entitled to delegate the function of adopting personal injuries guidelines to another body and did so in a constitutionally effective manner here.

4. Section 7(2)(g) of the Judicial Council Act 2019 (the 2019 Act”) was found invalid.  This was only aspect of the Appellant’s claim that was successful was a finding that this section was unconstitutional.

This section required the Judicial Council to adopt the personal injuries guidelines prepared and submitted by the Personal Injuries Guidelines Committee to the Board. The Judicial Council was also obliged to adopt any draft amendments to personal injuries guidelines prepared and submitted to that Committee as soon as practicable and no later than 12 months after such submission. The entire Judiciary was co-opted by statute to adopt the Guidelines.

The Supreme Court found that because the relevant provision of the 2019 Act involved the entire judiciary and imposed a compulsory obligation on them, it was inappropriate and the section was found invalid. The majority of the Supreme Court found that this would impair the independence of the judiciary. This means that if any personal injury guidelines or sentencing guidelines are to be adopted in future, some different mechanism for the adoption of guidelines must first be prescribed by the Oireachtas.

It should be noted that although a majority of the Supreme Court found this provision invalid in circumstances where it undermined judicial independence, Mr Justice Collins expressed a dissenting view. He expressed concerns that the Oireachtas could now give the power to make guidelines to a body other than the Judicial Council, which would then trench upon rather than protect the principle of judicial independence. He said that he has significant concerns that in the name of vindicating judicial independence, the majority has “unwittingly undermined it”.

5. The Guidelines have retrospective application. The majority of the Supreme Court found that a Plaintiff never had a vested right to have damages assessed at any particular level. No one in the past in any personal injury claim was ever guaranteed any personal right to recover at a particular level. There is still a right to damages, as assessed by the Court and subject to appeal where a breach of duty of care has been established and this has not been changed by the introduction of the guidelines.

6. The Government’s review of the Guidelines may be significantly delayed by this decision. The Government’s ability to make recommendations or amendments to the guidelines (to account for cost of living increases, inflation etc.) must be reconsidered as further legislation may be required to alter or amend the Guidelines in future.

7. This decision not only has implications for personal injury matters, it will also have an impact on the Judicial Council’s work to review and draft sentencing guidelines in criminal matters.

For further information contact Sarah Bruen sbruen@reddycharlton.ie