Challenged: Woman attacks the sick reality of the new Personal Injury Guidelines

Legal Challenge

12 July 2021

A woman who suffered an undisplaced fracture in her foot after falling on a public footpath has brought a High Court case aimed at overturning the adoption of new personal injuries guidelines.

The action by Bridget Delaney follows an assessment she is entitled to general damages of €3,000 which, she claims, is insufficient. The injury should attract damages of between €18,000-34,000, she claims.

Ms Delaney claims she sustained an undisplaced fracture of the tip of a bone in her right ankle after she tripped and fell at a public footpath at Pinewood Estate, Dungarvan, Co Waterford on April 12th 2019.

She required medical treatment, physiotherapy and was given a walker boot for about four weeks.

She claims she suffered her injuries due to negligence of Waterford City and County Council.

In June 2019, her lawyers submitted a claim to the Personal Injuries Assessment Board (PIAB). At the time, she claims PIAB was required, when assessing her application and making an award, to have regard to the general guidelines in the Book of Quantum to the amounts that may be awarded or assessed in personal Injury claims.

She claims the appropriate awards for her injury ranged from between €18,000 and €34,000 but, last May, PIAB assessed her as entitled to €3,000 general damages.

She rejects this assessment as insufficient. She has to pay her legal fees out of that award and it does not compensate her for the injuries she sustained, it is claimed. She claims the assessment amounted to an error in law by PIAB and was in breach of fair procedures.

She also claims the assessment was delayed because PIAB was awaiting the adoption of new guidelines on awards for personal injuries which came into force last April.

She claims the assessment of her claim was made under these new guidelines and her lawyers asked PIAB to reassess her claim under the Book of Quantum but PIAB refused to do this.

In March 2021, the Judicial Council, comprising all judges here, voted to adopt the new guidelines. She claims the requirement in the 2019 Judicial Council Act that members of the judiciary vote on the new guidelines is inconsistent with the independence of the judiciary and amounts to an impermissible delegation of the administration of justice to the council.

The adoption of the guidelines has violated her constitutional right to access to the courts, she further claims.

In intended judicial review proceedings against PIAB, the Judicial Council, Ireland and the Attorney General, Ms Delaney of Cruachan, Knockateemore, Dungarvan, Co Waterford seeks various orders and declarations.

These include orders quashing PIAB’s assessment concerning her claim, and the Judicial Council’s decision of March 6th last to adopt the new personal injuries guidelines.

She claims PIAB acted outside its powers and breached her rights to natural and constitutional justice in the manner which it assessed her claim.

She also contends the Judicial Council acted outside of its powers in adopting the personal guidelines and that provisions of the 2019 Judicial Council Act breach the Constitution and the European Convention on Human Rights.

When the matter was briefly mentioned on Monday before Mr Justice Charles Meenan by Dermot Cahill BL, for Ms Delaney, the judge said there may be an issue with him hearing any aspect of the case as he was a member of the council when the vote was taken.

All judges become members of the council once they are appointed to the bench, he said.

Counsel said one High Court judge, Ms Justice Siobhán Stack, had not been appointed when the Council voted on the guidelines, and suggested perhaps she could hear the case.

Mr Justice Meenan said he would consider that and adjourned the matter for two weeks.

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