Five of the nine Supreme Court judges are conflicted, for reasons including being on the board of the Judicial Council, for the hearing of an important appeal this month aimed at setting aside guidelines slashing awards for minor personal injuries. As a result three judges of the Court of Appeal will join the four non-conflicted Supreme Court judges to comprise a seven-judge court to hear the appeal by Bridget Delaney, from Dungarvan, Co Waterford.
Ms Delaney’s case is a test case and the outcome of her appeal, listed for February 28th, has major implications for the future handling of personal injuries claims.
The appeal will be heard by Supreme Court judges Mr Justice Peter Charleton, Mr Justice Gerard Hogan, Mr Justice Brian Murray and Mr Justice Maurice Collins, sitting with Court of Appeal judges Mr Justice Donald Binchy, Ms Justice Máire Whelan and Mr Justice Robert Haughton.
Ms Delaney’s action is against the Personal Injuries Assessment Board, Ireland and the Attorney General, and the Judicial Council.
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Due to their membership of the board of the Judicial Council, the Chief Justice, Donal O’Donnell, Ms Justice Iseult O’Malley and Ms Justice Marie Baker, are unable to hear the appeal.
Two other Supreme Court judges – Ms Justice Elizabeth Dunne and Mr Justice Seamus Woulfe – are also conflicted. Ms Justice Dunne is chairwoman of the Judicial Council’s personal injuries guidelines committee (Pigc) and Mr Justice Woulfe was attorney general at the time the Judicial Council was established.
The appeal is against a judgment of High Court ‘s Mr Justice Charles Meenan rejecting all grounds of Ms Delaney’s challenge, including her claims the guidelines are unconstitutional and encroach on judicial independence.
In a previous determination agreeing to hear the appeal a panel of Supreme Court judges said it raises issues of importance to the constitutional structure of the State. The issues include the interpretation and construction of delegated legislation regarding the implications of judicial independence and the separation of powers between the judiciary and executive.
The guidelines were drafted by the Pigc, as required by the Judicial Council Act 2019, and passed by a majority of judges in March 2021.
In her personal injuries claim against Waterford City and County Council, Ms Delaney claimed she fractured a bone in her right ankle after she tripped and fell at a public footpath in Dungarvan on April 12th, 2019. She claimed her injuries were caused by negligence of the defendant. She required medical treatment, physiotherapy and was given a walker boot for several weeks, it was claimed.
In June 2019, she submitted a claim to the Piab. It assessed her claim in May 2021, under the guidelines, at €3,000.
In her action Ms Delaney argued her claim should have been assessed under the book of quantum, which the guidelines replaced, as between €18,000-€34,000. She argued the Piab acted outside its powers in assessing her claim under the guidelines, breached her rights to natural and constitutional justice, and that the Judicial Council acted outside of its powers in adopting the guidelines.
In June 2022, Mr Justice Meenan rejected all of Ms Delaney’s claims. Her constitutional rights of property and bodily integrity and equality “did not encompass a right to a particular sum of damages, but rather a right to have her damages assessed in accordance with well-established legal principles”, he held.
He said the “clear and well-established” principles for awarding of general damages is not only a matter between a plaintiff and a defendant but for society in general. The independence of the judiciary, and their expertise and experience in awarding of damages, meant the Judicial Council was an appropriate body to draft and adopt the guidelines, he held. The 2019 Act made specific provision to preserve judicial independence, he added.
