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).

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.

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.

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.”