Personal injury claimants and assessment board may benefit from court’s important clarification

Personal injury claimants, and the Personal Injuries Assessment Board (Piab) itself, may benefit from the Court of Appeal’s important clarification on the board’s reason-giving obligations when assessing damages under the personal injury guidelines.

The judicially approved guidelines, enacted with a view to slashing awards for mainly minor personal injuries, appear to be having considerable impact since they came into operation in April 2021.

According to the Courts Service annual report for last year, the number of new personal injuries cases being taken has fallen by more than 40 per cent in the last four years. The value of awards last year was €36 million down on the 2021 figure

Ankle fracture

Judgment is pending from the Supreme Court on a significant appeal, heard last March, against the High Court’s dismissal of a challenge concerning the constitutionality of the guidelines.

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The appeal by Bridget Delaney, from Dungarvan, Co Waterford, arose from Piab’s assessment under the guidelines of a €3,000 award for an ankle fracture. She claims the injury should have been assessed, under the previous book of quantum rules, for between €12,000 and €21,000.

The Court of Appeal’s (CoA) judgment on Monday in Tara Wolfe’s separate appeal centred on Piab’s reason-giving obligations when assessing damages under the guidelines.

The three-judge CoA allowed the appeal by Ms Wolfe, a hospital catering assistant, over a Piab assessment of €11,000 general damages for soft tissue injuries sustained when an oven allegedly fell on her in her workplace, Dublin’s Mater hospital, in 2018.

A medical report for Piab identified her injuries in order of dominance and severity as being a moderate lower back soft tissue injury and a mild left shoulder soft tissue injury. It stated that she had made a substantial recovery within two years and was expected to make a full recovery after three years.

The CoA said the Piab’s assessment clearly regarded the back injury as the “dominant” one but provided “no information at all” as to how her lesser injuries were taken into account and how much, if any, of the €11,000 general damages assessment related to those.

Lesser injuries

Piab took the lesser injuries into account by putting Ms Wolfe at the higher end of what it regarded as the relevant damages bracket for the back injury in the guidelines of €6,000-€12,000, effectively applying an “uplift” to the lesser injuries, but she had no way of knowing what sum, if any, was allowed to reflect the lesser injuries, the court said.

How an assessment is calculated is “of critical importance” to a claimant for reasons including, if they decide to reject the assessment and go to court, they face a legal costs risk, it noted.

Claimants are entitled to be given information sufficient to understand the basis of the general damages calculation “without having to resort to guesswork”, it said. In Ms Wolfe’s case, that information could have been supplied in a single sentence, it added.

Piab may take comfort from the court’s clear statement that it is entitled to rely on medical reports without having to “regurgitate large tracts” of those in its assessments. It remains open to the board to seek a further appeal to the Supreme Court.

The CoA decision is expected to be considered in the ongoing review of the guidelines by the Personal Injuries Guidelines Committee of the Judicial Council. Whether or not the guidelines are sufficiently clear in relation to the treatment of multiple injuries is believed to be among the issues raised as part of that review. The committee is expected to deliver its report and recommendations to the board of the council by next March.