knowledge 15 April 2024 |

Supreme Court finds judicial guidelines for personal injuries are lawful

Background

The Supreme Court (the “Court”) has held¹ that judicial guidelines aimed at reducing personal injury awards have legal effect on a plaintiff who had applied to have her injury assessed before they came into force.

The case arose from proceedings issued by a plaintiff who injured her ankle after tripping and falling on a public road in April 2019 and had that injury assessed at €3,000 under the current Judicial Council guidelines introduced from April 2021 (the “Guidelines”). The plaintiff sought to argue the same injury would attract compensation of between €18,000 and €34,000 if assessed under previous guidelines (the book of quantum). The plaintiff submitted her application to the Personal Injuries Assessment Board (“PIAB”) in June 2019 and she had her claim assessed in May 2021 using the newly formed Guidelines regarding the appropriate level of damages.

Legal position

The legal position was that section 22 Civil Liability and Courts Act 2004 obliged courts and PIAB assessors to have regard to the book of quantum, but that situation changed with the enactment of the Judicial Council Act 2019 which empowered the Council to adopt guidelines in respect of personal injury awards – which they did with effect from April 2021. The law was amended to provide that both PIAB assessors and courts dealing with personal injury claims must “have regard to the personal injury guidelines in force” and if departing from those guidelines state the reasons for doing so. The plaintiff argued that the PIAB had acted outside its powers in assessing her claim under the Judicial Council guidelines and furthermore argued the Guidelines did not have legal effect as the Judicial Council had acted outside its powers in adopting them. 

Judgment

The question for the Court was whether the Judicial Council, when adopting the Guidelines, were exercising their judicial power within the meaning of Article 34.1 of the Constitution or whether the Guidelines were adopted in an unconstitutional manner. By a 4-3 split the Court held that the adoption of the Guidelines by the Judicial Council pursuant to section 7(2)(g) Judicial Council Act 2019 was unconstitutional as it fundamentally undermined judicial independence.

However, having found that the Guidelines were not adopted lawfully the Court held that the subsequent parliamentary confirmation of the Guidelines pursuant to the Family Leave and Miscellaneous Provisions Act 2021 meant that they did indeed have statutory effect. By a 6-1 split the Court found that the Guidelines were binding in law on that basis. In summary the Guidelines are applicable to a plaintiff’s claim and may only be amended by legislation.

On the question of whether the plaintiff was entitled to be re-assessed by PIAB, the Court was again split with the majority of members finding that the plaintiff was not entitled to a fresh assessment on the basis that the plaintiff did not have any vested property rights and had no right to any legal remedy other than a just assessment of her injuries.

Implication

A recent report² from the Central Bank of Ireland which demonstrated that the average cost of settling employer and public liability insurance claims through the Injuries Resolution Board (formerly PIAB) has dropped by a third while average insurance premiums have increased by 8% for a period in 2022. The reduction of the cost of resolving disputes through the Injuries Resolution Board, the impact of the Guidelines on personal injuries awards and changes made to the law around the Occupiers’ Liability Act 1995 and the subsequent rebalancing of the duty of care are three of the key planks of the government’s attempts to reform insurance costs which have consistently been cited as a major obstacle to small and medium sized business. The Court’s majority decision in this case gives certainty to the legitimacy of the Guidelines and their ability to decrease personal injury awards into the future.

McCann FitzGerald LLP ©