Wolfe v Personal Injuries Assessment Board
| Jurisdiction | Ireland |
| Judge | Ms. Justice Miriam O'Regan |
| Judgment Date | 17 June 2022 |
| Neutral Citation | [2022] IEHC 370 |
| Court | High Court |
| Docket Number | [Record No. 2021/712JR] |
and
[2022] IEHC 370
[Record No. 2021/712JR]
THE HIGH COURT
JUDICIAL REVIEW
Personal injury – Assessment – Reasons – Applicant seeking to quash the decision of the respondent – Whether the reasons provided were inadequate
Facts: The applicant, Ms Wolfe, suffered a personal injury at work on 26 December 2018, when she was an employee of the notice party, Mater Misericordiae Hospital. The respondent, Personal Injuries Assessment Board (PIAB), made an assessment on 25 June 2021 in the sum of €11,000 for general damages. Such assessment was furnished to the applicant and was accompanied by a letter of 25 June 2021. The applicant applied to the High Court seeking to quash the decision of PIAB which was made under the provisions of the Personal Injuries Assessment Board Act 2003. The relief also sought a declaration that in fulfilment of PIAB’s obligation to “have regard” to the personal injury guidelines, PIAB must provide reasons in writing based on its use and application of the guidelines in accordance with the express terms of the guidelines, and/or provide a written assessment recording how the specific headline principles of the guidelines are applied by reference to the medical evidence available, in accordance with the express terms of the guidelines. The applicant claimed that neither the assessment nor the accompanying letter gave details or reasons as to how the considerations in the guidelines were applied. It was argued that the reasons provided were entirely inadequate and that this inadequacy occasioned the applicant real and serious prejudice as she was obliged to accept, if she was going to do so, the award within twenty-eight days of the assessment. It was argued that because s. 51A of the 2003 Act provides that where a claimant rejects or is deemed not to have accepted an assessment, and the respondent either accepts or is deemed to have accepted the assessment, in subsequent proceedings before the court there should be no award as to costs to the claimant where there is a settlement of those proceedings which does not exceed the amount of the PIAB assessment, and where there is an amount of damages awarded by those proceedings that does not exceed the amount of the PIAB assessment, the court in such proceedings may in its discretion order the claimant to pay all or a portion of the costs of the defendant. It was further argued that the applicant’s solicitor was unable to advise her and unable to properly review the assessment by reason of the failure to provide proper reasons in accordance with the guidelines, and this failure coupled with the prospect of an adverse costs order had a very real “chilling effect” on the applicant’s constitutional right of access to the courts.
Held by O'Regan J that as reasons departing from the guidelines were not in fact incorporated, either in the assessment or the accompanying letter, then it was clear that the guidelines were applied rather than departed from and in those circumstances there was no statutory requirement for the respondent to give reasons. Insofar as the “chilling effect” argument was concerned, she found that it was clear from the terms of s. 51A of the 2003 Act that there is the potential, which is not absolute, that if a claimant does not achieve an award greater than the PIAB award in court costs of the defendant may be awarded against her in respect of such court proceedings. Insofar as the applicant suggested that it was unknown whether or not the applicant’s shoulder and thigh injuries were taken into account, it appeared to O’Regan J that a dominant injury was identified and this by definition acknowledged that the lower back injury was not the only injury suffered by the applicant. O’Regan J held that there was ample medical evidence before the respondent to come to a rational conclusion on the dominant injury being the lower back injury. In O’Regan J’s view, an objective observer would be aware in general terms the reasons for the award. O’Regan J held that in accordance with South Buckinghamshire District Council v Porter (No. 2) [2004] 1 I.W.L.R. 1953 one must bear in mind that the degree of particularity of the reasons depends entirely on the nature of the issues falling for decision. O’Regan J held that there was no express term in the guidelines themselves requiring written reasons based on the respondent’s use and application of the guidelines or requiring an assessment in writing of how the specific headline principles of the guidelines were arrived at. O’Regan J was satisfied that the respondent’s obligation to give reasons had been complied with.
O'Regan J held that the reliefs sought would be refused.
Reliefs refused.
JUDGMENT of Ms. Justice Miriam O'Regan delivered on the 17th day of June, 2022
The within applicant seeks to quash a decision of the respondent (PIAB) of 25 June 2021 in respect of the applicant's claim for personal injuries which was made under the provisions of the Personal Injuries Assessment Board Act 2003 (the 2003 Act). The relief also seeks a declaration that in fulfilment of PIAB's obligation to “have regard” to the personal injury guidelines, PIAB must provide reasons in writing based on its use and application of the guidelines in accordance with the express terms of the guidelines, and/or provide a written assessment recording how the specific headline principles of the guidelines are applied by reference to the medical evidence available, in accordance with the express terms of the guidelines.
The statement of grounds sets out that the applicant suffered a personal injury at work on 26 December 2018, when she was an employee of the notice party. In the accident she suffered soft tissue injuries to her left shoulder, lower back and right leg and made an application to PIAB on 20 February 2020. The applicant submitted her own medical report with her PIAB application and also attended an inspection by two independent doctors commissioned by PIAB.
The guidelines came into force on 24 April 2021 and on the same day s.31 of the Family Leave and Miscellaneous Provisions Act 2021 had the effect of amending s.20(1) and (4) of the 2003 Act and adding a subsection 5 thereto.
PIAB made an assessment on 25 June 2021 in the sum of €11,000 for general damages. Such assessment was furnished to the applicant and was accompanied by a letter of 25 June 2021. The applicant claims that neither document gave details or reasons as to how the considerations in the guidelines were applied, and there was no reason as to how and why the dominant injury was assessed as being her back, and why the injury was categorised as minor. Nor, it is complained, were there details or reasons as to how the considerations in the guidelines were applied. It is argued that the guidelines themselves mandate a much more sophisticated and detailed level of analysis than that provided, and it is suggested that detailed reasons for the award are required.
It is further complained that it is not known how the presence of other injuries were taken into account, how the relevant subcategory of injury in the guidelines was identified, what, if any, uplift was afforded to the applicant because of her multiple injuries, how PIAB had regard to the applicant's pre-existing condition, or how the specific provisions of the guidelines at pp. 28 to 32 thereof were applied.
On the basis of the foregoing, it is argued that the reasons provided are entirely inadequate and that this inadequacy occasioned the applicant real and serious prejudice as she was obliged to accept, if she was going to do so, the award within twenty-eight days of the assessment.
It is argued that because s.51A of the 2003 Act (inserted by the amending act of 2007 on 11 July 2007) provides that where a claimant rejects or is deemed not to have accepted an assessment, and the respondent either accepts or is deemed to have accepted the assessment, in subsequent proceedings before the court there should be no award as to costs to the claimant where there is a settlement of those proceedings which does not exceed the amount of the PIAB assessment, and where there is an amount of damages awarded by those proceedings that does not exceed the amount of the PIAB assessment, the court in such proceedings may in its discretion order the claimant to pay all or a portion of the costs of the defendant.
It is further argued that the applicant's solicitor is unable to advise her and unable to properly review the assessment by reason of the failure to provide proper reasons in accordance with the guidelines, and this failure coupled with the prospect of an adverse costs order has a very real “chilling effect” on the applicant's constitutional right of access to the courts.
During the course of the hearing an issue arose between the parties as to cross-examination of the applicant and her solicitor in relation to the assertions made by them as to the inadequacy of reasons provided, in circumstances where there is affidavit evidence on behalf of the respondents to the effect that reasons were adequate. The parties agreed the following:
“We agree that it is an objective question of law as to whether adequate reasons were provided in respect of the assessment made by the Board on 24 June 2021 and that the assertions/views referred to in the passages in the affidavits on both sides on the issue as to whether adequate reasons were provided in respect of the assessment made by the Board on 24 June 2021 are not relevant to the determination of this issue in the case.”
In answer to the query as to where the express terms of the guidelines require the provision of reasons based on PIAB's use and application of the guidelines, or where the requirement to give an assessment in...
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