THE TIME FOR excuses is over. The long-awaited judgment in the case of Brigid Delaney -v- Personal Injury Assessment Board, The Judicial Council, Ireland and the Attorney General has finally been delivered.
Or to be more precise, judgments. A seven-judge court, a number of judges usually reserved for only the most important cases as they often preside in pods of three or five, delivered five separate judgments (with the remaining two judges concurring with two of the delivered judgments).
A packed courtroom today, at the early hour of 9.00 am, waited with bated breath for clarity on an issue which has vexed lawyers, insurers and judges for three years now. As each judge delivered a synopsis of their conclusions, confusion reigned. Was the case successful or not? I searched the eyes of my colleagues for clues but they looked as clouded as mine.
At 9.30, all seven judges had spoken and with five very different judgments, each reaching separate conclusions and sub-conclusions, it took a succinct summary of the court’s most senior member, Mr Justice Peter Charleton, to confirm that Ms Delaney had ultimately lost her appeal and the guidelines were valid.
The case began with a fall on a footpath in Dungarvan, Co Waterford on 12 April 2019. She fractured her ankle and made a claim to the Personal Injuries Assessment Board (PIAB). Between the injury occurring and the PIAB making an assessment of the value of her case, on 6 March 2021, the Judicial Council approved new guidelines for personal injury damages which replaced the Book of Quantum.
The latter had been in effect since 2004 and had been based on values previously decided by the courts. It was self-fulfilling, judges making decisions based on their own previous decisions. The purpose of these new guidelines was to alter the method by which they were compiled by using other jurisdictions and additional external factors to guide the judges rather than their own precedents. Judges are allowed to depart from these guidelines but only where the award would be disproportionate if the guideline maximum award were to be applied.
The result of this was much lower damages in the majority of injury claims. Ms Delaney felt that her constitutional rights had been impugned because this fettered the discretion of judges to award her fair compensation. The PIAB assessed the sum of €3,000 for her injury and she argued that under the previous regime, governed by the Book of Quantum, she would have been entitled to a multiple of this sum and possibly by ten times as much.
While it is unlikely she would have recovered that much, the sum of €3,000 was patently unfair for the severity of her injuries and she asked the High Court to quash the decision of the PIAB. Mr Justice Charles Meenan in the High Court disagreed and said the judicial council were entitled to set guidelines and the judiciary’s independence was not affected in circumstances where the court retained discretion to go beyond the guidelines.
Ms Delaney appealed to the Supreme Court and ultimately failed in her quest to have the award overturned. Although a majority agreed that the section of the Judicial Council Act which adopted the guidelines was unconstitutional, a subsequent piece of legislation in 2021 validated these guidelines and gave them legal status despite the inherent unconstitutionality of the originating section.
Although some judges felt that the guidelines should not apply retrospectively to her case, a majority ruled that they should apply and she was bound by the level damages awarded under these guidelines.
So what does this mean for the future compensation levels and the cost of insurance? For the time being, the current guidelines remain in force. There is a statutory obligation to review them every three years, which coincidentally, falls this month. That review has been carried out and awaits judicial council consideration.
However, the decision today ensures that this revision cannot be completed until further legislation correcting the constitutional anomalies identified in this decision has been carried out. One would hope that the revised guidelines, when eventually passed, would reflect the substantial changes in the cost of living in the last three years and would redress the balance which has tilted firmly in favour of the insurers.
And this is the crux of the matter. For many years now the insurance industry has washed its collective hands of the egregious price gouging that it has inflicted on an unsuspecting public. They continue to blame everyone but themselves and their most invidious act has been to lobby for reduced damages which they have taken from the pockets of injury victims in order to line their own.
They promised lower premiums when damages went down but all we have seen are record profits.
They have got what they wanted now. No more excuses. Give us our money back.
Stuart Gilhooly SC qualified as a solicitor in 1995 and is a partner in H J Ward & Co, Solicitors. He practises mainly in the area of personal injuries and sports law. He was President of the Law Society of Ireland in 2017 and was President of the Dublin Solicitors Bar Association in 2011. Stuart is a frequent contributor in the written and broadcast media in the area of Personal Injuries. He was appointed as a Senior Counsel in 2021.
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