Delaney v Personal Injuries Assessment Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Charles Meenan
• Judgment Date: 02 June 2022
• Neutral Citation: [2022] IEHC 321
• Court: High Court
• Docket Number: [2021 No. 641 JR]

Between

Bridget Delaney

Applicant

and

The Personal Injuries Assessment Board, The Judicial Council, Ireland and The Attorney General

Respondents

[2022] IEHC 321

[2021 No. 641 JR]

THE HIGH COURT

JUDICIAL REVIEW

Personal injuries – Damages – Assessment – Applicant challenging the legal basis for the drawing up and passing of the Personal Injury Guidelines – Whether the first respondent erred in law in assessing the value of the applicant’s injuries under the Personal Injury Guidelines and not the Book of Quantum

Facts: The applicant, Ms Delaney, on 12 April 2019, fell when walking on a public footpath at Pinewood Estate, Dungarvan, County Waterford. Her injuries consisted of a grazed knee and an undisplaced fracture of the tip of her right lateral malleolus. By way of treatment the applicant had to wear a walker boot for about four weeks and was advised that she would have swelling in her ankle for approximately six to nine months. According to the applicant’s orthopaedic surgeon, apart from the swelling, she would have no significant long term sequelae. As the applicant’s fall appeared to be as a result of a defect in the footpath, she consulted her Solicitor. Waterford City and County Council were identified as the local authority responsible and a claim was initiated to the first respondent, the Personal Injuries Assessment Board (PIAB). The applicant was advised that, based on the Book of Quantum, her injuries would attract general damages in the region of €18,000 - €34,000. However, when PIAB made its assessment, it was in the sum of €3,000. This significant reduction in the value of the applicant’s claim was due to the fact that the Book of Quantum no longer applied, but the Personal Injury Guidelines did. 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.

Held by the High Court (Meenan J) that the well-established principles for the awarding of general damages provide that the level of damages is not only a matter between a plaintiff and a defendant, but also for society in general; economic, social and commercial conditions have to be taken into account in fixing levels of awards. He held that s. 90 of the Judicial Council Act 2019 sets out clearly the principles and policies that were to be applied and followed by the Committee in drawing up the Guidelines and the Committee methodically followed the principles and policies as directed by the Oireachtas in the said Act. He held that the Committee also took expert advice, both economic and legal, as was provided for. He held that 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. He held that the reduction of awards in the Guidelines was a result of the Committee applying the provisions of the 2019 Act, as it was obliged to do. He held that the Committee was entitled to fix levels of awards having regard the level of awards in other jurisdictions; both the 2019 Act and the Supreme Court provided for this. He held 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. He held that these reasons have to be rational, cogent and justifiable. He held that 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 2019 Act also made specific provision to preserve judicial independence (s. 93). He held that 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. He held that the effect of the application of these principles is that the level of damages varies over time. He held that, in assessing her claim, PIAB acted in accordance with the relevant provisions of the Personal Injuries Assessment Board Act 2003 (as amended).

Meenan J held that the applicant was not entitled to any of the reliefs which she sought.

Reliefs refused.

JUDGMENT of Mr. Justice Charles Meenan delivered on the 2 ^nd day of June, 2022

Introduction

1 . On 12 April 2019, the applicant fell when walking on a public footpath at Pinewood Estate, Dungarvan, County Waterford. The applicant claimed that the cause of her fall was an unevenness on the surface of the footpath. Her injuries consisted of a grazed knee and an undisplaced fracture of the tip of her right lateral malleolus. By way of treatment the applicant had to wear a walker boot for about four weeks and was advised that she would have swelling in her ankle for approximately six to nine months. According to the applicant's orthopaedic surgeon, apart from the swelling, she would have no significant long term sequelae.

2 . As the applicant's fall appeared to be as a result of a defect in the footpath, she consulted her Solicitor. Waterford City and County Council were identified as the local authority responsible and a claim was initiated to the first named respondent, PIAB. The applicant was advised that, based on the Book of Quantum, her injuries would attract general damages in the region of €18,000 – €34,000. However, when PIAB made its assessment, it was in the sum of €3,000. This significant reduction in the value of the applicant's claim was due to the fact that the Book of Quantum no longer applied, but the Personal Injury Guidelines (“the Guidelines”) did.

3 . In these proceedings, the applicant challenges the legal basis for the drawing up and passing of the Guidelines. She also maintains that PIAB erred in law in assessing the value of her injuries under the Guidelines and not the Book of Quantum.

General Damages

4 . As both the Book of Quantum and the Guidelines concern levels of general damages to be awarded for particular injuries, it is necessary to look at the principles that the Courts have applied in assessing the amount to be awarded.

5 . Where a person, such as the applicant, suffers an injury or loss through the wrongful act of another that person is entitled to be awarded a sum of money by way of general damages. The objective of the award of damages is to compensate the injured person for pain and suffering to date and into the future so as to, in as far as money can, put the injured person back into the position they were in prior to being injured. Unfortunately, the more serious the injury the less likely that an award of money will achieve that objective.

6 . The principles that a court will apply in awarding general damages have to be clear and be capable of being applied to injuries that range from the minor to the catastrophic. These principles have been stated by the Superior Courts on numerous occasions. In Nolan v. Wirenski [2016] 1 I.R. 461, Irvine J. (as she then was) in the Court of Appeal stated:-

“(33) 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.”

That the damages that are awarded have to be fair both to the plaintiff and the defendant does not require any comment. However, the principles make specific reference to “the common good and social conditions”. This requires comment and analysis. The amount of damages a person, or an indemnifier involved, has to pay to a plaintiff has economic consequences for the wider community. This has been recognised in a number of decisions of the Supreme Court. I refer to the following passage from Kearney v. McQuillan and North Eastern Health Board (No. 2) [2012] IESC 43 where Mac Menamin J., having referred to Sinnott v. Quinsworth Ltd [1984] I.L.R.M. 523, stated:-

“… It is important in this context to recollect, particularly at this time, those criteria of social conditions and common good. These are not just empty words. The resources of society are finite. Each award of damages for personal injuries in the courts may be reflected in increased insurance costs, taxation, or, perhaps a reduction in some social service. We are living in a time where ordinary people often find it difficult to make ends meet. The weight to be given to each of these factors must always be a consideration in the balance.”

7 . The third principle of damages being “proportionate” is particularly relevant to the framing of the Guidelines. What is referred to as the “cap” on general damages is the figure which represents the amount to be awarded to a person who has suffered life changing catastrophic injuries. This amount has varied over the years and is, significantly, influenced by the prevailing economic conditions. This was illustrated in Yun v. Motor Insurers Bureau of Ireland (MIBI) and Anor [2009] IEHC 318. In this case, Quirke J. considered expert economic evidence as to the prevailing economic conditions and forecasts. The Court was reviewing the level of the “cap” which had been set in 1984 in Sinnott v. Quinsworth. The evidence indicated that the value of the 1984 cap in 2008 was €500,000. However, taking into account the current and future economic conditions, Quirke J. reduced that sum to €450,000.

8 . The “cap” has recently been considered by the Supreme Court in Morrissey v. HSE and Ors ...