Delaney v The Personal Injuries Board and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton,Mr Justice Maurice Collins,Ms. Justice Faherty,Mr. Justice Gerard Hogan,Mr. Justice Robert Haughton
• Judgment Date: 09 April 2024
• Neutral Citation: [2024] IESC 10
• Court: Supreme Court
• Docket Number: Supreme Court appeal number: S:AP:IE:2022:000100 [2022] IEHC 321

Between

Bridget Delaney

Applicant/Appellant

and

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

Respondents

[2024] IESC 10

Charleton J

Hogan J

Murray J

Collins J

Whelan J

Faherty J

Haughton J

Supreme Court appeal number: S:AP:IE:2022:000100

High Court record number 2021/641

[2022] IEHC 321

An Chúirt Uachtarach

The Supreme Court

Judgment of Mr Justice Peter Charleton delivered on Tuesday 9 April 2024

1 The need for guidelines assisting judges in the assessment of personal injuries, a core and everyday function of all courts in Ireland, has generated public debate over decades. With the passing of such guidelines by the Judicial Council, under s 7 of the Judicial Council Act 2019, on 6 March 2021, such guidelines are now in place: but, subject to this challenge. Of those who litigate as plaintiff or defendant in the High Court or Circuit Court or District Court, the cause is usually some kind of an accident and the claim for compensation is almost always based on a lack of care shown in a factory, warehouse, or road setting. Apparently, the result of this case as to the validity and operation of the personal injury guidelines passed by the Judicial Council will influence thousands of cases currently awaiting judicial analysis and multiples of that into the future. The case is thus of systemic importance.

Approach

2 The judgment of Collins J, Murray J concurring, with which this judgment concurs, sets out the issues and the arguments as to why the personal injury guidelines infringe, or operate in conformity with, the Constitution. These separate observations, in essence, reason as follows: that the guidelines do not constitute an impermissible exercise in law-making, within the meaning of normative law whereby the Oireachtas exercises the sole and exclusive law-making power of the State under Article 15.2.1° of the Constitution; that in so far as the guidelines may be regarded as having legal effect, that is within the sphere of judicial decision-making as to the assessment of damages for injury, the assessment of sentence and the making of rules for the disposal of court business; that requiring by legislation that judges set guidelines is not an infringement of the separation of powers and does not trench on judicial independence as guaranteed by Article 35.2 of the Constitution; that the nature of fact-finding as essential to the judicial function remains within the sphere of the judiciary under the guidelines as promulgated; that while judges are bound by precedent, even within the same court level, for instance the High Court, departure from precedent is possible for good reason; that precedent is always subject to revision; that judges may explain a series of decisions by issuing en banc, or through a single decision, a summary of existing decisions and what these mean; that the Oireachtas has shown appropriate deference to the separation of powers in leaving to the judicial sphere the setting of guidelines for personal injuries and for sentencing; that the judicial sphere is the appropriate forum for the setting of any such guidelines; and that the flexibility in the 2019 Act in enabling departure from guidelines as to the level of damages for physical injuries in the interests of justice and by further enabling departure for stated reason cannot be regarded as raising the fundamental constitutional issues addressed in argument. Statutory analysis compels the proposition that the guidelines can be departed from where the award yielded by the guidelines bears no reasonable proportion to the award that the judge independently believes, and for stated and properly explained reason, should issue. Further, that since, for different reasons, a majority variously hold that the guidelines, as originally passed on 6 March 2021, infringe the democratic power reserved to government under Article 5 of the Constitution and impermissibly delegate the exclusive legislative function of the Oireachtas under Article 15.2.1°, Hogan J with whom Whelan J agrees, or operate to trench upon judicial independence under Article 35.2, Faherty and Haughton JJ, this judgment holds that the guidelines were affirmed by the Oireachtas. The result is the overcoming of any such infirmity as that majority hold, for differing reasons, through the Family Leave and Miscellaneous Provisions Act 2021 section 31, amending section 20 of the Personal Injuries Assessment Board Act 2003 in requiring judges to “have regard to the personal injuries guidelines (within the meaning of that Act) in force” and “where they depart from those guidelines, state the reasons for such departure and include those reasons in the assessment in writing”. Collins, Murray, Hogan, Whelan and Faherty JJ concur in this; Haughton J dissents. This judgment also agrees with the judgment of Collins and Haughton JJ, with which Murray J concurs, that the plaintiff did not have any property or personal right in her personal injury assessment under Article 40.3 and Article 43 of the Constitution: hence, the guidelines applied to her as of the date of assessment.

Guidelines

3 Central to the argument seeking to condemn the guidelines as infringing the exclusive law-making power of the Oireachtas, declared in Article 15.2 of the Constitution, and as trespassing into the passing of an unconstitutional law, is that these are, of their nature, rules of law. One of the basic principles of statutory interpretation is that those subject to its terms cannot ignore an enactment binding on them because its meaning is difficult to discern. As Bennion, Statutory Interpretation (1 ^st edition, London, 1984), states at page 233 “The language of command is different from other languages, which have to accept the status quo (whereas command alters it).” The language of guidance differs from the language of command because of its nature that which guides is of the nature of suggestion and not in the nature of command.

4 Henchy J in Inspector of Taxes v Kiernan [1981] IR 117 at 121 noted that a statutory provision directed to the public at large may be construed according to common usage, whereas those addressed to a specialised body may take on a technical aspect for interpretive purposes. Here, there is a dual direction: to the judicial council as to their highly technical and specialised function in setting up a committee to formulate, through experience and research, guidance as to personal injury awards; and to the public whereby it is made clear that a longstanding issue of national debate is to be settled by having such guidelines. Much centres on the use of the particular words. From the point of view of the committee, their task is to formulate what will guide the judiciary, while from the aspect of the general public, how damages may come to be calculated is for the first time made clear as an aspect of reasonable certainty.

5 Personal injuries guidelines adopted by the Judicial Council under section 7 of the 2019 Act are expressed under s 90(1) to “contain general guidelines as to the level of damages that may be awarded or assessed in respect of personal injuries”. That is the fundamental approach. The section goes on to that that “without prejudice to the generality of” that description of the exercise conducted, the guidelines may address “the level of damages for personal injuries generally”, or for “a particular injury or a particular category of injury, and in that regard “the range of damages to be considered for a particular injury or a particular category of injuries” and where, as may frequently be the case “multiple injuries have been suffered by a person, the consideration to be given to the effect of those multiple injuries on the level of damages”.

6 There are two inescapable principles to the judicial function. First, a judge should always strive to find out where the truth of a matter rests. Whether the cause is a commercial dispute as between building developers or whether the issue is as to which driver caused an accident leading to hospitalisation, there can be no sound adjudication unless a judge decides what the facts are. Often there will be contradictions and frequently the temptation to dissimulate or exaggerate will need to be kept in mind, but without deciding what happened, on the standard of proof as a probable result, any application of law will be misplaced. Secondly, a judge will strive to do justice. While that concept is fully realisable as a divine ideal, it is through law that situations are defined and the result to be applied is rendered consequent. A difference emerges in a situation where a body of experience is built up so that within a legal norm, as where a wrong is defined and proof sufficient to engender the remedy is presented to a court, the experience of the level of remedy can go beyond the result demanded by law, in tort cases damages, to the general prediction of the level of compensation mandated by law.

7 While, as the analysis in the separate judgments of Collins and Hogan JJ, elucidates, the difference as between law and the prediction of the nature of the mandated result may be permeable, describing a general result is different to the rigidity that is within the concept of legal regulation. Under s 93 of the 2019 Act, the duty of a judge to apply the law in furtherance of a just result is expressly preserved since the legislation is not to be “construed as operating to interfere with”, either, “the performance by the courts of their functions”, which is an express reference to judicial independence and the duties of a judge to be impartial under Article 34 of the Constitution or “the exercise by a judge of his or her judicial functions.” Personal injuries guidelines which under s 30 of the Family Leave and Miscellaneous Provisions Act 2021 amends the 2019 Act, enables departure from the guidelines. What is...