Judges can depart from the guidelines slashing damages for many minor personal injuries if they feel the award does not do an injury justice, lawyers for the State have told the Supreme Court.
Eoin McCullough SC, for the State, fielded several questions on Wednesday from the seven-judge court positing hypothetical scenarios in which judges might be entitled to make a higher award than is set out in the guidelines.
He said judges were expected to follow the guidelines, but if he or she believed these figures were “simply wrong” the Judicial Council Act of 2019 provided for a departure.
Asked by Mr Justice Brian Murray if “mere disagreement” with a value given in the guidelines allowed for departure, Mr McCullough said it did as long as other principles, such as proportionality, were observed and reasons set out. A judge cannot diverge by simply “throwing up his hands”, counsel added.
Mr McCullough was making submissions on the second and final day of Bridget Delaney’s appeal in her case against the Personal Injuries Assessment Board (PIAB), Ireland, the Attorney General and the Judicial Council.
The court said it was reserving its decision.
The Dungarvan resident’s action challenges guidelines drafted by the Personal Injuries Guidelines Committee of the Judicial Council, as required by the 2019 Act. They came into force in April 2021, after they were approved by a majority of 146 members of the Judicial Council.
At the opening of her case on Tuesday, Ms Delaney’s lawyers submitted that the guidelines interfered with the independence of the courts and her rights.
The Judicial Council’s passing of the guidelines in March 2021 was a “legislative act cloaked in a veneer of judicial action” and amounted to an unconstitutional interference with judicial independence, her side argued.
On Wednesday, Mr McCullough stressed that the guidelines are not legislation due to the fact judges can depart from them.
Mr Justice Murray queried if the judges of the Judicial Council had been required to engage in a “legislative or quasi-legislative” process. Could, he asked, judges be “conscripted” to write whole series of guidelines in other areas?
Mr Justice Peter Charleton asked if the Judicial Council decision led to “not just a blurring of lines […] the lines are crossing and crossing”?
Mr McCullough said the Judicial Council performed a function for which its members had a particular expertise. It was independent from the executive’s control, which is a feature that puts the decision “on the right side of the dividing line” between the courts and the legislature, he added.
Responding to the State’s submissions, Feichín McDonagh SC, for Ms Delaney, said the guidelines arose out of a process “forced” on the judiciary by the Oireachtas. Counsel said the fact no judge who was not a member of the Judicial Council could hear this appeal spoke to the fact the March 2021 decision “crosses and recrosses the boundaries” between the judiciary and the executive.
In her personal injuries action against Waterford City and County Council, Ms Delaney claimed that, due to the council’s negligence, she fractured her ankle bone after she tripped and fell on a public footpath in Dungarvan on April 12th, 2019. She required medical treatment and physiotherapy, and was given a walker boot for several weeks, she claimed.
She submitted an application to the PIAB in June 2019. It used the guidelines to assess her claim in May 2021 at €3,000. Ms Delaney argued her claim should have been assessed under the guidelines’ predecessor, the book of quantum, as between €18,000 and €34,000.
She argued the PIAB acted outside its powers in assessing her claim under the guidelines, and breached her rights to natural and constitutional justice. She alleged the Judicial Council acted outside of its powers in adopting the guidelines.
The appeal was heard by a seven-judge court, comprising four Supreme Court judges – Mr Justice Maurice Collins, Mr Justice Gerard Hogan, Mr Justice Peter Charleton and Mr Justice Brian Murray – and three Court of Appeal judges, Ms Justice Máire Whelan, Ms Justice Mary Faherty and Mr Justice Robert Haughton.