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.

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

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.

A recent High Court judgement has given helpful Guidance for Plaintiff and Defence Solicitors on direct instruction of Expert Medical Witnesses in Personal Injury Actions.

For a measured and appropriate discussion on the selection and use of expert medical witnesses in Personal Injury Cases, the recent Judgement of Mr Justice Ferriter is worth a read. It’s analysis of recent case law and helpful reference to the Law Society of Ireland’s Protocol for direct referral to Consultants by Solicitors is worth bookmarking.

Read more here.

The Role of the Project Supervisor on a Construction Site is examined in the Judgement of Mr Justice Sanfey in a recent decision. He accepted the Defendant’s contention that that a contractor responsible for a construction site is not under an absolute duty to ensure that the site is safe and without risk of injury. That Article 30 of the 2013 Regulations makes it clear that this duty applies “so far as is reasonably practicable”.

In this case the Court held that the safety statement was deficient. Primary liability rested with the Defendant. The Plaintiff was found to be guilty of Contributory negligence for adopting a method that was inherently unsafe.

Read more here.

This case concerned a claim by the applicant, Garda Kampff, for compensation in respect of a soft tissue injury to his hand. Counsel for the applicant relied on the Book of Quantum to urge the Court to an award of circa €21,700. Despite the Book of Quantum expressly providing that minor injuries to a hand have led to awards of up to €21,700, the High Court ruled that the award of anything even close to this magnitude could not be justified for what was, in essence “bruising to the hand” and awarded the applicant €5,000.

This amount is a fraction of the maximum damages of €15,000 that can be awarded in the District Court. Yet this matter had to be heard in the High Court under the Garda Compensation Act as currently drafted. Since this case is a common example of the type of case that is heard in the High Court under the Garda Compensation Acts on a weekly basis, it highlights, in this Court’s view, the need for a reform of this area.

It is clear from the judgment of Barton J. in Murphy v. Minister for Public Expenditure and Reform [2015] IEHC 868 that in dealing with compensation claims under the Garda Compensation Acts that the High Court is not obliged to have regard to the Book of Quantum:

“For the sake of completeness, it is considered appropriate to refer to the provisions of s. 22 of the Civil Liability in Courts Act 2004 (the Act of 2004) which imposes on the Court a requirement, when assessing damages in a personal injuries action, to have regard to the Book of Quantum. Although reference to the book is sometimes made by counsel in the course of submissions on the hearing of the application under the Acts, the Court is not bound to have regard to it since, by virtue of s. 2(1) of the Act of 2004, an application for compensation under the [Garda Compensation Acts] and certain actions for damages are expressly excluded from its scope. However, there is no prohibition on the Court from doing so.”

It was concluded that in calculating damages, the court is obliged to be ‘fair’ to both parties and that any award must be ‘proportionate’ within the structure of damages for personal injury and any such award must be objectively ‘reasonable’ in light of the “common good and social conditions.”

The Wirenski case sets out that the relevance of ‘social conditions’ in the State and in particular the ‘average earnings principle’ is to be used in addition to the ‘proportionate principle’ when calculating general damages. Thus, in this case the High Court was obliged to apply both principles as well as the fairness principle which states that the final award must be fair to the injured party and the payer of the compensation. In applying these principles, the Court concluded that the appropriate figure for pain and suffering is €5,000, which is over a month’s salary based on average earnings in Ireland.

It is hoped that even if there is no reform of the Garda Compensation system, these principles of fairness, proportionality and reasonableness may assist parties who are involved in Garda Compensation and other personal injury litigation to make and accept settlement offers and thus decrease the amount of court time essential to deal with these cases, in light of the current strain on court resources.

The recent Court of Appeal judgment of Platt v OBH Luxury Accommodation Limited & Anor [2017 IECA 221] concerned an exaggerated claim and the Plaintiff was found to have lied.

Case Overview:

Mr Jason Platt, (known as the plaintiff) had travelled to Kinsale for a Valentine’s weekend break and he and his partner were staying at the Old Bank House, Pearse St, Kinsale where he claims the accident took place on February 15, 2009. The plaintiff alleged he fell from a windowsill in a room in the defendant’s hotel. As a result, his ribs, spine and hip were severely damaged. Mr Platt had sued OBH Luxury Accommodation Ltd with offices at Pearse St, Kinsale and company director Ciaran Fitzgerald.

Nevertheless, the hotel owners contended that Mr Platt threw himself from the window of his guestroom following a heated argument with fiancée.

Mr Platt sought compensation for his injuries and was presented through his testimonies as a poor man suffering chronic pain and discomfort. The plaintiff had also submitted under oath, an affidavit verifying a schedule of special damages and future loss claiming almost £1.5 million. It became apparent that he was found to have intentionally deceived the court and overstated the level of his agony and the degree of his incapacitation.

High Court:

Regardless of finding the Defendants 60% responsible, Barton J. discharged the Plaintiff’s claim after video evidence submerged of him going shopping, driving, carrying bags, and walking unassisted. (a clear disparity to the testimony from the Plaintiff who emphasized how extremely incapacitated he was as the Plaintiff had previously specified that he was now duty bound to use a wheelchair, crutches or a commode.)

Court of Appeal:

Irvine J. dismissed the appeal, relying on Section 26 of the Civil Liability and Courts Act 2004 to discharge the whole claim.

The Court of Appeal specified that the 2004 Act was designed to ensure that incorrect or deceptive declarations, accusations or evidence would “not lightly be tolerated”.

Section 26 of the Civil Liability and Courts Act 2004:

Section 26 states:

“If, after the commencement of this section, a plaintiff in a personal injuries action gives or adduces, or dishonestly causes to be given or adduced, evidence that—

(a) is false or misleading, in any material respect, and

(b) he or she knows to be false or misleading,

the court shall dismiss the plaintiff’s action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.”

Barton J stated, the standard of proof that is essential to effectively appeal Section 26 was the balance of probability, nonetheless the seriousness of the matter being alleged must be taken on board as well as the gravity of the issue and the consequences in considering the evidence essential to discharge the onus of proof.

Importantly, it was verified by the court that if a Section 26 application is successful the entire claim must fail. This was confirmed in Meehan v BKNS Curtain Walling Systems Ltd. [2012] IEHC 441. Irvine J. went on to state that “the plain and ordinary meaning of the words make clear that if the evidence is false and misleading in a material respect “the action” shall be dismissed. The section is simply incapable of any other construction”.

Secondly, before dismissing a claim under Section 26 the Court must also look at the consequences for the plaintiff where a claim is discharged under Section 26.

However, although adverse penalties must not be the only influence considered, the Court continued that it can be considered amongst other relevant factors. A failure by a court to do so would conflict against the Court’s obligations to interpret legislation in accordance with the legitimate principles of fairness and proportionality.

Nevertheless, the Court of Appeal maintained that the finding of Barton J. in the High Court was correct. The Court of Appeal agreed with the defence that a claim such as this was “indeed the type of case the Oireachtas had in mind when the (Section 26) legislation was enacted”.

Conclusion:

This is a very significant judgement.

Firstly, it reiterates the transparency of the law. If a Plaintiff is found to have exaggerated his or her claim, the entire case will be dismissed and he or she may be prosecuted.

Dismissing a fraudulent claim like this is a victory for the defendants and insurers. As a result, the compensation money that would have gone to the plaintiff, can now be used to compensate the numerous honest victims of personal injury when required.

Moreover, any claim that goes in favour of the injured party has been supported by comprehensive medical records, expert reports, widespread evidence and cross examination.

It is hoped the courts judgement will mark the beginning of a change in attitude from the courts when considering Section 26 applications in the future.

BY COLLEEN WARD – TRAINEE SOLICITOR

The article illustrates the difficulties arising from pursuing an order under Section 26 of Civil Liability and Courts Act 2004. Outlined below is a recent High Court highlighting the difficulty insurers have on pursuing a case dismissal under Section 26.

Section 26 states that “if a plaintiff claiming injury does not tell the truth on affidavit or does not tell the truth in Court, then the Court has discretion to either dismiss the claim in its entirety or penalise the plaintiff in respect of any damages made. Even on the occasion where a plaintiff has done so unwittingly or even innocently. Where a Court is satisfied that the requirements of Section 26 have been met, then the provisions of Section 26 are binding.

Buncrana Circuit Court awarded seven plaintiff’s damages between €5,050 and €9,550 as a result of a collision on 28 June 2011 involving two cars on a roundabout in Lifford, County Donegal.

The plaintiff’s each claimed for soft tissue injury. Firstly, against the driver of the vehicle responsible for the accident and secondly, against Ryan’s Investments NI Ltd trading as Hertz Rent-A-Car whom the negligent driver’s car was hired.

Ryan’s investments insurers appealed the award made by the Circuit Court branding the accident as a “fraud.” They claimed those involved knew each other via membership of Republican commemoration groups and that the accident had been fabricated with the sole purpose of extracting the maximum compensation from the driver’s insurance company.

Mr. Justice Charles Meenan, who delivered the High Court judgement in July rejected this claim. He maintained the most that was admitted by the plaintiffs was that some of the men knew each other in an only “to see” capacity.

Though the evidence, in some instances, concerning prior knowledge of each other, was “less than forthright” he remained unconvinced that such evidence went so far as to establish the collision was a ‘set up.’

The Circuit Court understood that the negligent driver had contacted one of the injured men by telephone when returning his car to the Hertz office. The call was overheard by a Hertz employee, who stated, that the ‘friendly manner’ of the discussion was evidence that the collision was a complete fraud.

Yet, Judge Meenan maintained the awards made by Buncrana Circuit Court. Referring to the phonecall, he believed that if the accident was staged “the communication during the telephone call would previously have been decisively fixed in the negligent driver’s mind previous to returning the hire car.”

The defendants’ lawyers relied on the plaintiffs’ medical evidence which was disclosed during the hearing. All seven reports indicated that a complete recovery was made within a short time frame.

Unfortunately, Mr. Justice Meenan rejected the allegation the accident was a ‘set up.’ affirming there was not sufficient evidence adduced to make an order pursuant to Section 26. Total damages of €52,350 were awarded against the Defendants.

Farrell v Dublin Bus is an illustration of the court exercising its discretion on Section 26.

Mr. Justice Quirke held that Ms. Farrell, had, given evidence which she knew was false and she did so to support her claim that her injuries deprived her of any income from the date of her accident.

On this foundation, the judge held Dublin Bus was entitled to a Section 26 Order dismissing the claim.

We understand relying on Section 26 can sporadically miscarry. However, it is one of the limited provisions of the 2004 Act that can be used to discourage dishonest and exaggerated claims.

In our experience, we have found that the leading reasons for discharging cases under Section 26 are often one or more of the following: –

• Prior injuries to the accident not revealed during the course of the case.
• False loss of earnings claims as one of the reasons in Farrell v Dublin Bus.
• Articulate fabrications in evidence of a severe and substantial nature.

At Lacey Solicitors, our team of legal professionals are highly trained in dealing with fraudulent and exaggerated claims. We can ensure all clients, both plaintiff and defendant are given full professional directions throughout the entire claims process.

BY COLLEEN WARD – TRAINEE SOLICITOR

Mr. Justice Barr delivered his judgement on the 31st day of May 2017 in the matter of Duffy v Lyons. The action involving a road traffic accident which took place on 8th September 2014 at the junction of Crumlin Road and Rafters Road, Dublin 12. This High Court case centred around liability and contributory negligence.

The plaintiff stated that he was in the process of making a right-hand turn on his bicycle, he was collided into by the defendant’s car, which was proceeding along Crumlin Road coming in the opposite direction. The plaintiff’s case was, had the defendant been driving with reasonable care, he ought to have seen the plaintiff’s bicycle on the junction and should have avoided the collision.

The defendant (Mr Lyons) case was that the plaintiff emerged suddenly onto his side of the road, from between a line of traffic that was backed up on the opposite side of the road and that he had no chance to avoid the collision.

Mr Justice Barr favoured the evidence given by the defendant because the plaintiff had contributed to his own misfortune. The judge explained, the accident was predominantly caused by the negligence on the part of the plaintiff in failing to yield right of way to the defendant’s vehicle and in failing to keep a proper lookout to his left before crossing onto the far carriageway on Crumlin Road.

The judge found that Mr Duffy was clearly negligent in relation to his own safety in failing to wear a helmet. While the failure to wear a helmet had no causative effect in relation to causation of the accident, it is nevertheless indicative of a somewhat cavalier attitude on the part of the plaintiff as to his own safety. While there was no expert evidence as to the extent to which they can reduce the level of head injuries suffered by a cyclist, Mr Justice Barr was prepared to take judicial notice of the fact that by wearing a cycle helmet, a cyclist can greatly reduce the risk of suffering a serious head injury.

Furthermore, Mr Duffy’s admitted failure to have any lighting on his bicycle on the night in question was relevant to causation of the accident. Mr Justice Barr stated, “when cycling in the city, or in the country during the hours of darkness, a cyclist is obliged under the law to have front and rear lights on his bicycle.”

Mr Justice Barr held that the plaintiff in this case, as a grown man, was highly negligent to cycle from the city centre to his home in Drimnagh without any lights on his bicycle. Thus, failure to have such lighting was highly negligent behaviour on the part of a cyclist.

High Court judgement can be found here:

By Colleen Ward – Trainee Solicitor

The Irish government has agreed upon the outline of the insurance amendment bill 2017. Minister for Finance, Mr Paschal Donohoe outlined yesterday “The failure of Setanta and the ambiguity that followed over the compensation arrangements for claimants emphasised weaknesses with the current insurance compensation framework.”

The new legislation will implement the recommendations of the report written by the Framework for Motor Insurance Compensation, therefore greater certainty for both consumers and industry will be provided, concerning the insurance compensation framework in Ireland.

As well as seeking clarity on the insurance compensation framework in Ireland, the Bills key objective, when enacted, will be to increase the level of cover to clients of insolvent insurance companies to 100 per cent instead of the existing level, currently at 65 per cent.

This will bring it into line with the compensation levels paid out by the Motor Insurer’s Bureau of Ireland (MIBI).

In addition, this increase will be backed by the insurance industry with safety measures implemented to protect the industry in the unfortunate event a motor insurer finds itself in liquidation. A legal basis will also be delivered for motor insurers functioning in the Irish market to contribute an amount equal to 2% of gross written motor premiums to an ex-ante fund which will be held by MIBI enabling the industry to meet its 35% commitment.

The Central Bank of Ireland and the State Claims Agency will now have an official role regarding administering the funds if any insurance company finds itself in financial difficulty.

A time limit for making applications to the High Court for payments from the ICF will also be amended to any 3-month period, enabling payments to be made more frequently.

The press release which can be found here, summaries main changes which the Bill will follow.

By Colleen Ward -Trainee Solicitor.