The Guidelines Decision. Delaney. A quick take.

According to reports the Court delivered five judgements in the case of Delaney v PIAB, The Judicial Council Ireland and The Attorney General.

Mr Justice Charleton gave a summary as follows.

The majority of the Court considered the guidelines to be legally binding.

Three of the Justices defined the standard that the Guidelines can only be departed from where unreasonable.

The majority reached the view that Section 7 (2) (g) of the Judicial Council Act 2019 was unconstitutional, but that the guidelines were subsequently correctly implemented by virtue of the enactment of Part 9 of the Family leave and Miscellaneous Provisions Act 2021 which sought to amend the Judicial Council Act 2019 and Personal Injuries Assessment Board Act 2003. As such the guidelines passed on the 6th March 2021 were in force as a matter of law and had been given legal effect.

More analysis to follow.

Landmark Supreme Court Judgement – Personal Injuries Guidelines survive Supreme Court Challenge.

A Blog by Damian McGeady and Terence C Lacey.

In a landmark decision the Supreme Court has today struck down the Personal Injury Guidelines which came into force in Ireland in April 2021.

Delaney v PIAB, The Judicial Council Ireland and The Attorney General

The decision of the Supreme Court was handed down in the matter listed before the Court for judgement at 9am. The Appeal in the Judicial Review proceedings was from a decision of Mr Justice Meenan in the High Court.

On 12th April 2019 Mrs Delaney fell walking on a footpath grazing a knee and suffering an undisplaced fracture of the tip of the right lateral malleolus (minor ankle fracture).

She applied to PIAB. Respondent was the local authority, Waterford City and County Council. She was advised at the time that under the Book of Quantum general damages were in the range of €18,000.00 – €34,000.00. PIAB made an Assessment under the new guidelines in the sum of €3,000.00.

The Applicant initiated Judicial Review proceedings challenging the legal basis of the drawing up of the guidelines and that the PIAB erred in law in assessing the value under the guidelines and not the Book of Quantum.

The Limbs of Review.

  • Impermissible delegation of legislation. That the Judicial Council Act 2019 failed to set out “Principles and Policies” for drawing up the guidelines. It was in breach of Article 15.2.1 of the Constitution – vesting sole power of legislation in the Oireachtas.
  • That the provisions of the 2019 Act are unconstitutional being contrary to the constitutional provisions that provide for judicial independence (Article 35.2 of the Constitution).
  • That the imposition of the guidelines is retrospective depriving the Applicant of vested rights (Retrospection).
  • That the imposition of lower awards provisions were disproportionate and/or irrational and infringed the Applicant’s property rights, right to bodily integrity and equality under the Constitution.

The Decision of the High Court.

The matter was heard in the High Court by Mr Justice Charles Meenan. He held as follows:-

  • There are well established principles for awarding general damages which is not just 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.
  • Section 90 of the Judicial Council Act sets out clearly the “Principles and Policies” to be applied (see limb (i) above).
  • In drawing up the guidelines the Judicial Council Committee methodically followed the “Principles and Policies”.
  • The Committee was not mandated to reduce costs of awards (some more serious awards saw a rise in damages). The results were as a result of the Committee applying the provisions of the 2019 Act.
  • The Committee was entitled to fix levels of awards having regard to levels of awards in other jurisdictions. Both the 2019 Act and the Supreme Court provided for this.
  • The provisions allow a Court to depart from the guidelines therefore it is not an encroachment on judicial independence.
  • Judicial independence, expertise and experience meant that the Judiciary is the appropriate body to draft the guidelines.
  • The Applicant’s constitutional rights of property, bodily integrity and equality do not encompass a right to a particular sum rather a right to have damages assessed in accordance with well-established legal principals.
  • In assessing the claim, PIAB acted in accordance with the PIAB Act 2003 (as amended).

The Supreme Court held that whilst the S7(2) (g) Judicial Council Act 2019 was held to be an impermissible delegation of legislation and an encroachment on the separation of powers the 2021 Family Leave and Miscellaneous Provisions Act lawfully corrected the position.

More analysis to follow.

9th April 2024

Personal Injuries and the Constitution – Decision Incoming.

Decision in Delaney case eagerly awaited.

Briefing note by Damian McGeady.

Delaney v PIAB, The Judicial Council Ireland and The Attorney General

White Smoke?

The decision of the Supreme Court is expected to be handed down on Tuesday the 9th April next. The Appeal in the Judicial Review proceedings is from a decision of Mr Justice Meenan in the High Court. Here is a reminder of the issues.

Background.

On 12th April 2019 Mrs Delaney fell walking on a footpath grazing a knee and suffering an undisplaced fracture of the tip of the right lateral malleolus (minor ankle fracture).

She applied to PIAB. Respondent was the local authority, Waterford City and County Council. She was advised at the time that under the Book of Quantum general damages were in the range of €18,000.00 – €34,000.00. PIAB made an Assessment under the new guidelines in the sum of €3,000.00.

The Applicant initiated Judicial Review proceedings challenging the legal basis of the drawing up of the guidelines and that the PIAB erred in law in assessing the value under the guidelines and not the Book of Quantum.

The Limbs of Review.

  • Impermissible delegation of legislation. That the Judicial Council Act 2019 failed to set out “Principles and Policies” for drawing up the guidelines. It was in breach of Article 15.2.1 of the Constitution – vesting sole power of legislation in the Oireachtas.
  • That the provisions of the 2019 Act are unconstitutional being contrary to the constitutional provisions that provide for judicial independence (Article 35.2 of the Constitution).
  • That the imposition of the guidelines is retrospective depriving the Applicant of vested rights (Retrospection).
  • That the imposition of lower awards provisions were disproportionate and/or irrational and infringed the Applicant’s property rights, right to bodily integrity and equality under the Constitution.

The Decision.

The matter was heard in the High Court by Mr Justice Charles Meenan. He held as follows:-

  • There are well established principles for awarding general damages which is not just 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.
  • Section 90 of the Judicial Council Act sets out clearly the “Principles and Policies” to be applied (see limb (i) above).
  • In drawing up the guidelines the Judicial Council Committee methodically followed the “Principles and Policies”.
  • The Committee was not mandated to reduce costs of awards (some more serious awards saw a rise in damages). The results were as a result of the Committee applying the provisions of the 2019 Act.
  • The Committee was entitled to fix levels of awards having regard to levels of awards in other jurisdictions. Both the 2019 Act and the Supreme Court provided for this.
  • The provisions allow a Court to depart from the guidelines therefore it is not an encroachment on judicial independence.
  • Judicial independence, expertise and experience meant that the Judiciary is the appropriate body to draft the guidelines.
  • The Applicant’s constitutional rights of property, bodily integrity and equality do not encompass a right to a particular sum rather a right to have damages assessed in accordance with well-established legal principals.
  • In assessing the claim, PIAB acted in accordance with the PIAB Act 2003 (as amended).

The Appeal of the Court

By Damian McGeady.

The Case of O’Daly

On the 8th June 2016, Mr O’Daly was cycling on the quay, near Dublin’s Custom House, when a passing bus caused him to fall, fracturing the bank official’s elbow and spraining his ankle. Several years on, and after a contested action where liability was disputed, a High Court Judge awarded him €100,000 General Damages for pain and suffering. Last week, the Court of Appeal reduced that award for General Damages to €55,000.

Teething

At the time of the incident in June 2016, the Court of Appeal was cutting its teeth, having been constituted in late 2014. In Payne v Nugent in November 2015, Irvine J. delivered a judgement which reduced an award by Mr Justice Cross. The Court decreed that awards must be reasonable having regard to the injuries sustained, that they must also be proportionate to the awards commonly made to victims in respect of injuries which are of significantly greater or lesser import. That modest injuries should attract moderate damages. A few months before Mr O’Daly’s brush with a bus, the Court of Appeal in Nolan v Wirenski addressed the jurisdiction of an appellate court to overturn an award of damages, reducing an assessment of damages by Barr J. from €100,000 to €65,000.

A Recalibration?

Weeks later, Mr & Mrs Shannon had their damages awarded by Donnelly J. in the High Court, substantially reduced by the Court of Appeal. In a separate Judgement on Costs in the action, the Court of Appeal refused to accept the submission by Counsel on behalf of the Appellants that the recent Court of Appeal decisions amounted to a recalibration of assessment of General Damages.

Along the Quays

Two weeks on from Mr O’Daly’s accident and just along the Quays at the Four Courts, a Miss Cronin, who had previously been awarded €180,000 damages for injuries by Cross J., was being told that her award for injuries sustained as a taxi passenger in an accident at Harold’s Cross, was being reduced by €75,000.

Murphy’s Just Award

Sandwiched between the two decisions, and proving that recalibration had not occurred, was the decision in Murphy v County Galway Motor Club. Mr Murphy, a spectator at a rally event where a car left the road and struck him, suffered dreadful injuries. The Court raised the assessment of McGovern J. on General Damages from €200,000 to €275,000. It also set aside a finding of contributory negligence. Whilst the decision in Murphy favoured the injured party and justly raised the award, there is a definite sense that the Appellate Court had a calming effect on Damages since its formation. Up until then it was often very difficult to predict levels of awards in the High Court. Advice to insurers would often be couched with the proviso, that much depended on the identity of the Judge hearing the case.

Discourse, debate and dispute

More recently, in McKeown v Crosby, the Court of Appeal reduced an award from €70,000 to €35,000. In doing so it referenced the public discourse, debate and dispute relating to the personal injury damages. In Griffin v Hoare, General Damages were reduced by the majority of the Court from €155,000 to €120,000. In Quinn v Masivlaniec, the Court reduced damages for pain and suffering from €210,000 to €175,000. In Leidig v O’Neill, General Damages were reduced from €155,000 to €90,000.

The Court, on occasion, has refused to interfere with the High Court’s assessment of Damages in Zhang v Farrell, and O’Sullivan v Brozda.

Just days ago, the High Court reduced an award for psychiatric damage in the case of Zagananczyk.

Working

Next year there will be ten candles on the Court of Appeal cake. It’s formation and the approach that it has adopted to the assessment of General Damages for personal injuries is by now well-rehearsed. Reasonableness and proportionality are key to it’s approach. That is to be welcomed in a landscape where up to it’s formation, awards were much more volatile and unpredictable. Volatility and unpredictability are unwelcome in the Insurance world. The Court of Appeal is working.

Court of Appeal Reduces Award for Psychiatric Injury

What is the correct method of valuing psychiatric injury under the new Guidelines?

A blog by Damian McGeady

The Court of Appeal has given further guidance on the methods of valuing Psychiatric Injury under the new Guidelines. In the Zagananczyk case, the Court upheld the Appeal of the Defendant’s, reducing the High Court award of €90,000 damages for general damages to one of €60,000.

In the High Court, the Trial Judge accepted that the Plaintiff had suffered from PTSD in the lower end of the serious category, finding a figure of €45,000 to be appropriate. The Court accepted that the Plaintiff also suffered separately, an identified and diagnosed Psychological Injury in the form of an alcohol abuse disorder and depression, which the Court categorised as being at the lower end of moderate and for which the Court allowed €20,000 damages.

Thus the High Court’s award for Psychiatric Injury totalled €65,000. The High Court allowed an additional figure of €25,000 for burns and scarring.

The Appeal

The Defendants argued that the Trial Judge erred in classifying the PTSD as serious and that the Judge was wrong to separately award two different sums for Psychiatric Injury. In addition, the Defendants argued that the Judge’s award for scarring was excessive.

Applying the Guidelines

The Court of Appeal identified the decision of Coffey J. in Lipinski (a minor) v Whelan as helpful analysis, not just in valuing Psychiatric Injury, but in applying an uplift for lesser injuries. The Court also referred to and commended the decision of Murphy J. in McHugh v Ferol. In that action the Court, having established the value of the dominant injury went on to value each additional and lesser injury, totting the values up before applying a discount to the lesser injuries. In McHugh the discount was 50%.

Reality Check

In his Judgement in the Court of Appeal in Zagananczyk, Noonan J. said;

Whatever mathematical approach is adopted, it is important not to lose sight of the global impact of all the injuries on the particular plaintiff concerned. The plaintiff is entitled to be compensated for all the suffering they have endured, be it from one or ten discreet injuries suffered at the same time. As the Guidelines suggest, some assistance may be derived from a consideration of how the overall award compares with other individual categories in the Guidelines. If an obvious mismatch emerges, this may suggest that the requisite proportionality has not been achieved. That is, in my view a useful exercise in the present case as appears further below and can provide a helpful “reality check”.

The Assessment on Appeal

The Court of Appeal held that the High Court had made a number of errors in it’s approach to the assessment of damages for Psychiatric Injury. The Court noted that the Guidelines define PTSD as including mood disorder and that depression was a mood disorder. Applying the analysis of Coffey J in Lipinski, the Court of Appeal found that the Trial Judge had erred in reaching a classification that the Plaintiff’s PTSD was “serious”. It found that a cumulative award for Psychiatric Injury in the case of €65,000 clearly offended the doctrine of proportionality, reducing the award to €35,000, stating:

Although in my view the PTSD in Lipinski was of a more serious order than in the present case, nonetheless when one factors in the depression and alcohol abuse, even assuming they were to be regarded as separate, I think, as in Lipinski, an award of damages at the top end of the moderate category is justified at €35,000.

Whilst The Court found it unsatisfactory that the High Court Judge had not indicated how the uplift was applied to in the case of burns and scarring, the Court of Appeal did not consider that the Defendant had established an error on the part of The Judge in arriving at a figure of €25,000 for scarring.

The Court of Appeal reduced the award for general damages from €90,000 to €60,000.

High Court Procedure. Should a Summons be heard?

Appeal finds that High Court ought to have heard Summons brought by Defendant rather than adjourn it generally.

by Damian McGeady

In Sherry v Murphy & Ors, the Court of Appeal heard an appeal from a judgement and Order of the High Court, the substance and effect of which was to refuse to fix a date for the hearing of a motion brought on behalf of a Defendant who challenged the adequacy of a Personal Injury Summons. The defendant sought several orders based on the alleged failure of the personal injuries summons to comply with High Court Procedure and the requirements of Part 2 of the Civil Liability and Courts Act, 2004.

When the motion was called counsel for the defendant asked for a date to be fixed for the hearing of the motion. This was opposed by counsel for the plaintiff who argued that the progress of the case was impeded by the fact that the first defendant had not delivered his defence and was seeking to have his defence assessed by way of a motion. The judge ruled that he should first deliver his defence and then bring his motion, which could be dealt with alongside the hearing of the action. The judge declined an application by counsel for the plaintiff to strike out the motion but rather adjourned it generally and reserved the costs.

The Substance of the Appeal was that the High Court judge exercised his discretion to adjourn the motion generally – or not to assign a hearing date – in a manner which irredeemably prejudiced the defendant. It is said that the effect of the order was to irredeemably defeat the objectives of Part 2 of the Civil Liability and Courts Act, 2004 and that the order made failed to have regard to where the balance of justice lay.

The Court of Appeal held that the suggestion that that the effect of the order was to irredeemably defeat the objectives of the Act probably put it too high but, did find that the defendant had an argument to make that the requirements of the Act had not been met in the way the claim against him was pleaded.

In considering correct High Court procedure and allowing the Appeal and remitting the motion to the High Court for hearing the Court acknowledged the difficulty that Judges face in matters such as these.

“I acknowledge that in the management of busy lists and scarce resources a significant margin of appreciation must be afforded to the list judge but in my view, he was led into error by the summary of the issues. In my view, the refusal of the High Court judge to fix a date for the hearing of the motion created a substantial risk of significant procedural unfairness coupled with a likelihood that no effective remedial action could be put in place later to address the very significant additional costs to which the first defendant was exposed in the event that his application proved to be successful.”

Sports Writing, Shane Warne, The Master of the Rolls and Baseball

Part One.
A blog by Damian McGeady
Donegal.

Until recently, I thought that I had read the greatest legal paragraph ever written in my first week as a law undergraduate. I know that it’s a bit niche, but please do bear with me. It was written by Lord Denning. That was in 1993. Sam Maguire was sitting behind a bar in Maghera at the time, well-oiled in his first week in Derry. I had spent the summer driving and dreaming. Driving a TNT liveried van around every back road in Donegal, dreaming of Croke Park on the third Sunday in September. I was listening too. To every ball of the 1993 Ashes series. Not that I had been a fan of Cricket before then. The FM signal in Donegal was patchy. The one constant was Long Wave. And so, it was for me a summer of BBC Test Match Special on the World Service.

Old Trafford (Not that One).

Do you remember Shane Warne’s Ball of the Century? I do. I was in a Ford Transit van driving from Gweedore to Letterkenny. I had just passed the foot of Errigal, there passed McGeady’s Pub at the rise above the Poisoned Glen. The Sky was cloudless. It was his first Ashes ball. And I heard it, live. I was hooked. Until then, I didn’t get cricket.

Lord Denning did. He got cricket. Weeks later with the ink barely dry on my USIT card I read the opening of his Judgement in the case of Miller v Jackson.

I was a fan of good sports writing. I had devoured Paul Kimmage’s Rough Ride that summer. Earlier in the year I had read Nick Hornby’s Fever Pitch. On Sundays it was Brian Glanville and Hugh McIllvaney in the broadsheets. Then there was Denning’s Miller v Jackson opening paragraph.

County Durham.

“In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club-house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practice while the light lasts. Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore, He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that, when a batsman hits a six, the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at weekends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the Judge to stop the cricket being played. And the Judge, I am sorry to say, feels that the cricket must be stopped: with the consequences, I suppose, that the Lintz cricket-club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.”

Denning’s whimsical piece is a joy of sporting and legal literature. He got Cricket the way John Woodcock got Cricket. On his death Woodcock was hailed the poet laureate of cricket writers.

New York.

Roger Angell might be described as the poet laureate of Baseball. In 2014 Sports Illustrated called him the greatest Baseball Writer in America. He wrote regular Essays in The New Yorker. In doing so it quoted his 1975 piece, Agincourt and After, where he described

“the infantile and ignoble joy that sends a grown man or woman to dancing and shouting with joy in the middle of the night over the haphazardous flight of a distant ball—seems a small price to pay for such a gift.”

Mr Justice Declan Budd could have given Angell a run for his money. The Irish High Court Judge retired in 2011 after 20 years on the bench. It was only recently that I became aware of his judgement in the 1999 case of Kane v Kennedy. I happened about it just by accident.

Reader, prepare yourself for the most wonderful piece of baseball writing. This is breathtakingly beautiful. As eloquent as any of the great American sports writers. This from an Irish Judge.

Dublin.

“The news of the death of Joe DiMaggio came while I was writing this judgment. His record streak in 1941, when he got a hit in fifty six consecutive games, still stands. His grace at the plate and his defensive qualities at centre field, his leadership of the New York Yankees to victory in nine of the ten world series in which he led them, and above all his gentlemanly conduct made him a legend in his own lifetime. I wonder what he would have made of the problems with which I have been confronted in resolving the conflicts of evidence presented by what followed the strike by Alice Dunne during the game of rounders played in the sports hall of a convent school in Glasnevin on the morning of Tuesday 21st May 1996.”

I read it again. And again.

In Part two we explore further Mr Justice Budd’s judgement and other Irish Judicial references to sport.

High Court rules that ‘The Uplift’ can exceed the value of the award for the dominant Injury in applying the new Guidelines.

In the case of McHugh v Ferol the Court was asked to accept that the value of the uplift for less dominant injuries can exceed the value of the award for the dominant injury. The Court in accepting the approach undertaken by Coffey J. in The Lipinski Judgement, noted that the guidelines do not provide advice as to the process a court should undertake when assessing the uplift to ensure that a claimant is fairly and justly compensated for additional pain and suffering. It noted that in reaching his decision in Lipinski that Coffey J. did not set out the process he arrived at to calculate the uplift of €25,000 in circumstances where the main injury attracted €35,000.

The Court held that the uplift could in fact exceed the amount awarded for the dominant injury.

““Uplift” simply means to raise. The rise in damages for pain and suffering arising from the non – dominant injury in any particular case, could well exceed the award of damages for the dominant or main injury. There is nothing in the Guidelines to suggest that the single uplift is restricted to a proportion of the damages awarded for the main injury. This Court can well envisage a circumstance in which a fair and proportionate uplift would exceed the general damages awarded for the dominant injury.”

For illustrative purposes the Court outlined how a claimant who suffered from multiple serious injuries would not be justly compensated if the uplift could not exceed the award for the dominant injury.

In the McHugh case, whilst the court accepted the principle that the uplift could exceed the award for the dominant injury it did not do so in the case at hand. Murphy J. assessed the value of the dominant Injury at €60000. She then sought to place a value on each of the less dominant injuries. The cumulative value of which was €65,000. The Judge settled on a figure for the uplift at half of the cumulative value, being €32,500.

“Taking into account the roll up factor and the overlap of injuries, the court considers that an uplift of €32,500, represents fair and just compensation for all the additional pain, discomfort and limitations arising from the plaintiff’s lesser injuries.”

The Judgement can be read here.

The High Court restates the position that Solicitors can instruct non-treating Medical Experts in Injury Actions.

Healy v HSE is the second Irish High Court judgement in a matter of days that focussed on the issue of Solicitors instructing non-treating Medical Experts in Personal Injury actions. The Court restated the position that it was entirely appropriate. In doing so the Court in fact considered the rules elsewhere, where often Medical Evidence from treating experts can be viewed as potentially conflicted.

“Solicitors and counsel have training, experience and skills which derive from established duties and principles. The legal profession is considered by the Court to be a noble profession; it assists in upholding and protecting the law. Law preserves the moral sanctity which binds society. In short, no question was asked or arose during the assessment hearing about the propriety of the referral of the plaintiff by each firm of solicitors to some of the medical practitioners, followed by the delivery of medico – legal reports.”

Conflict between the wording of a Motor Insurers certificate and schedule. How is it resolved?

The High Court in London recently heard a case where there was such a conflict involving an Equity Red Star Trade Policy. The policy was issued to a vehicle transport company. The schedule stipulated that the policy covered a limited number of vehicles being driven on Trade Plates. The class of use on the schedule was described as “Business use of the Insured”.

The Certificate differed, and stated, “Any private car or commercial vehicle the property of the policyholder or in their custody or control including any motor vehicle bearing a trade plate number owned by the policyholder.” The class of use as stated on the certificate was “Use for social, domestic and pleasure purposes and for the business of the policyholder.”

In September 2017 an employee of the Insured had collected a vehicle that was due to be delivered to a client a few days later. On the second day the employee, driving the vehicle, without trade plates, and for what appeared to be social and domestic purposes, was involved in a collision in which the third-party vehicle driver suffered serious injury.

A dispute arose between Allianz (ordinarily the Insurers of the transported car) and ERS, as to whether the ERS policy applied.

Beltrami J, addressing the apparent conflict in the ERS Policy found that the ERS policy did not apply.

“I find that the conflict should be resolved in ERS’s favour. Taking the ERS Policy as a whole, the operative document which defined the insured vehicles and the cover which applied was the Schedule. That Schedule was unambiguous as to those matters. The Certificate served a different purpose and should, in the event of inconsistency, have to yield to the Schedule on such matters.”

The Judgement can be read here.