A lead challenge by a Co Waterford woman over the constitutionality of new guidelines slashing awards for minor personal injuries opens today at the High Court.
Bridget Delaney’s action, the first of several, involves a wide-ranging attack on the constitutionality of the guidelines, approved by an 83/63 majority of judges just a year ago.
Ms Delaney, of Knockateemore, Dungarvan, claims she fractured her ankle 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 the Personal Injuries Assessment Board’s (PIAB) assessment of her injury as meriting a €3,000 general damages award under the guidelines. Her claims, she says, should have been assessed at between €18,000–€34,000 under the Book of Quantum (BoQ), which the guidelines have replaced.
Her case against the PIAB, the Judicial Council and the State has potentially huge implications for claimants who have seen a fall of more than 40 per cent in PIAB awards issued since the guidelines came into effect last April. They apply to new cases only and cases initiated prior to April 24th last year will be assessed under the BoQ.
Mr Justice Charles Meenan is hearing the case, expected to run for several days. It will be closed watched by litigants, lawyers, insurers and State bodies.
Ms Delaney's core claims include that the requirement in the 2019 Judicial Council Act for the judiciary to vote on the guidelines amounts to judge-made law in breach of the separation of powers. The adoption of the guidelines breached her constitutional rights, including her property rights and rights of access to the courts, it is argued.
Procedure
In its opposition to the challenge, the State denies the procedure in the Act under which the guidelines were approved is unconstitutional. Its opposition is expected to focus on the public interest in promoting consistency in personal injury awards and controlling insurance costs.
Other core defences include that the guidelines are not mandatory and that judges retain discretion to depart from them, once they give clear reasons for doing so.
The State and the PIAB had sought an urgent hearing of the case, initiated last year, because of concerns including other claims are on hold pending the outcome.
Mr Justice Meenan previously refused an application on behalf of Ms Delaney to have the challenge heard by a judge who had not participated in the Judicial Council vote on the guidelines, compiled by the Council’s Personal Injuries Guidelines Committee after it examined awards here and in certain other countries.
They mean that certain awards, particularly for minor injuries, face being reduced to a level between awards in Northern Ireland and awards in England and Wales. Data obtained by the committee suggested Irish whiplash awards are 1.2 to 1.3 times higher than in Northern Ireland, and 1.9 to 2.3 times higher than in England and Wales.
The guidelines mean a whiplash injury from which a full recovery is made within six months could get an award between €500-€3,000, with up to €12,000 for recovery within two years. The BoQ provided no minimum and for up to €19,400 where a full recovery is expected.
