Challenges to personal injury claim guidelines are growing

The State is braced for a series of constitutional challenges to new personal injury guidelines that have slashed award levels.

The guidelines came into force in April after being drafted by a judicial committee and approved by a vote of the Judicial Council, made up of the entire judiciary.

So far this month, two cases have been filed in the High Court in which declarations are sought that sections of the Judicial Council Act are unconstitutional. A further case seeking similar declarations is expected shortly.

The first case filed was a plenary action taken by Carmel Mulligan, a nurse from Kilcullen, Co Kildare, who fractured her shoulder in a fall at Dublin Airport in February 2019.

The matter has yet to get an airing in open court, but it has been learned she is claiming the legislation, under which the Judicial Council was allowed to formulate the guidelines, violated the separation of powers and the independence of the judiciary.

Ms Mulligan made an application to the Personal Injuries Assessment Board (PIAB) in October 2019, but says after “a protracted delay” it was assessed under the new guidelines rather than under the old Book of Quantum. This meant she was offered a lower award.

However, she is not challenging PIAB’s handling of her claim. Her action is instead against Ireland and the Attorney General and largely focussed on the legislation underpinning the guidelines.

Her solicitor, Robert Coonan, said he believed the proceedings would have a bearing on how personal injury cases are dealt with “from here on in”.

“They raise very serious issues concerning the separation of powers and the oath of office of the judges,” he said.

“The concern of the plaintiff is this legislation has been promulgated not through the Oireachtas but by the Judicial Council, which comprises the judges of this country.

“The concern that gives rise to is that any judge who will now be required to determine the issue of constitutionality is going to have to consider his or her own views in relation to the injury guidelines because it is a constitutional guarantee that a plaintiff is entitled to an impartial hearing.”

Opinion was divided among judges on whether the guidelines should be adopted. They were accepted by a margin of 83 votes to 63.

In her proceedings, Ms Mulligan argues parts of the act are not consistent with Article 35.2 of the Constitution, which prescribes that all judges should be independent in the exercise of their functions.

She says the act is unconstitutional as it requires or permits any judge to have a role in the formulation or adoption of prescriptive guidelines for cases they are not adjudicating themselves.

Ms Mulligan also claims the act is unconstitutional by reason of the mandatory and coercive character of the obligations placed on members of the judiciary in relation to the drafting, adoption and application of the guidelines. 

The court this week heard judicial review proceedings were being taken by Waterford woman Bridget Delaney against PIAB after it awarded her €3,000 for a bone fracture after she fell on a footpath.

As part of her case she is seeking declarations that the Judicial Council acted outside of its powers in adopting the guidelines and that provisions of the act are in breach of the constitution and the European Convention on Human Rights.

Both cases may have to be heard by a recently appointed judge who was not a member of the Judicial Council at the time it adopted the guidelines.

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