The law requiring judges to prepare new guidelines on personal injury damages does not say minor injury awards should be cut by more than 40 per cent and the Minister for Justice "must have thought all her Christmases came together" when that happened, the High Court has heard.
Feichín McDonagh SC said despite the State's "Greek chorus" that the guidelines were "in the public interest", the Judicial Council Act - under which the guidelines were prepared and adopted - did not state an intention to cut awards with a view to reducing insurance premia.
He submitted the Act was unconstitutional for reasons including legislative power is impermissibly delegated to the Judicial Council without setting sufficient principles and policies concerning the guidelines.
While the Act states judges may depart from the guidelines provided they give written reasons for doing so, the reality is judges have “very little scope” to do that, he said.
The guidelines set 259 bands of damages for specific injuries and the new regime could not work if judges could disapply the guidelines because they considered damages for a particular injury are inadequate, he said.
Mr McDonagh was opening a lead challenge on Tuesday on behalf of Bridget Delaney from Dungarvan, Co Waterford, to the constitutionality of the Act.
The case, before Mr Justice Charles Meenan, is the lead of several cases over the guidelines, approved by an 83/63 majority of judges in March 2021.
The guidelines came into effect from April 24th last and apply to claims authorised by the Personal Injuries Assessment Board (PIAB) after that. Earlier cases will be assessed under the Book of Quantum (BOQ), which provided for higher awards.
Ms Delaney claims she suffered an undisplaced ankle fracture after she tripped and fell at a public footpath at Pinewood Estate, Dungarvan, on April 12th, 2019.
She claims she required medical treatment, physiotherapy and was in a walker boot for four weeks as a result of alleged negligence of Waterford City Council.
She disputes PIAB’s assessment of €3,000 general damages under the guidelines.
Her claim, she argues, should have been assessed at between €18,000-€34,000 under the BOQ which the guidelines have replaced.
Her case against the PIAB, the Judicial Council and the State has potentially huge implications for claimants, lawyers, insurers and the State.
PIAB, she claims, acted unlawfully in processing her application under the guidelines.
The claim against the Judicial Council includes that its personal injuries guidelines committee erred in considering one of its functions was to reduce damages.
In her case against the State, Ms Delaney claims the Act is unconstitutional for reasons including it involves an impermissible invasion by the legislature of judicial power. Other claims include that the reduced value of her claim under the guidelines is an unconstitutional and disproportionate attack on her rights to bodily integrity, property and an effective remedy for breach of rights.
In submissions on Tuesday, Mr McDonagh said the case is not about asking judges to take part in the preparation of guidelines but rather about what has happened on foot of legislation enacted by the Oireachtas.
Three core issues in the case concern how the Judicial Council Act is constituted, the content of the guidelines and their status in Irish legislation, he outlined.
The guidelines follow decisions of the English courts, rather than the Irish courts, in relation to the value of injuries but there is no basis for that in the Act, he added. “It is curious to go to a former colonial power and bring in lower damages rather than look to our own courts.”
The reduced damages provided for in the guidelines appeared to come as “a surprise” to the Minister for Justice who was “delighted” and must have thought “all her Christmases had come together”.
A press release from the Minister after the guidelines were adopted described them as a “key action” in her justice plan and referred to striking a balance between tackling high insurance costs and ensuring appropriate compensation for injury.
The case, listed for six days, continues on Thursday.
