Boy and his grandmother challenge new personal injury award guidelines
Posted on 15th November 2021 at 20:25
Grandmother fears she could get damages of less than €50,000 rather than up to €91,000
A boy whose horse “stampeded” on a road in Co Laois after allegedly been struck by a car, injuring himself, his mother and grandmother, has brought a constitutional challenge over new personal injury damages guidelines under which his general damages claim was assessed at €14,000.
His grandmother, who fears the guidelines could result in her receiving damages of up to €50,000 rather than up to €91,000 under previous guidelines, has brought a similar challenge.
At least five such challenges over the constitutionality of the guidelines, and their compatibility with European human rights law, are before the courts with more expected.
In the latest cases, Feichin McDonagh SC, said, through no fault of his two clients, their cases were authorised to be dealt with under the guidelines while the claim by the boy’s mother’s out of the same accident was authorised under the old regime which provides for higher awards.
Their challenges involve claims that the guidelines, which primarily cut awards for minor injuries, amount to judge-made law in breach of the separation of powers and without the Oireachtas having set out in the relevant legislation its opinion that personal injury awards here are too high.
Rosemary Farrell and her eight-year-old grandson, Padraig Farrell, maintain it is “manifestly unfair” their claims were handled by the Personal Injuries Assessment Board (PIAB) under the new guidelines when a claim by Padraig’s mother, Vickey Farrell, over the same accident in May 2020, was assessed under the Book of Quantum, which provides for higher damages.
The guidelines became operational last April after being approved by an 83/63 majority of the Judicial Council, comprising the judiciary. They are intended to be applied to personal injury claims made since then. Judges can depart from them but must give clear reasons for doing so.
The Farrells say they will reject PIAB’s assessments, with the effect their cases will go to trial. Because the court must “have regard to” the guidelines providing for lower awards in awarding any damages, they maintain their rights including to property, bodily integrity and equality have been unjustly attacked.
They say PIAB’s failure to authorise their claims to proceed under the old system breaches their rights, including to fair procedures, speedy trial and effective remedy.
‘Perception of bias’
The adoption by judges of the guidelines amounts to constitutionally invalid judge-made law and leads to “a perception of bias” on the part of the judiciary, they claim.
Mr Justice Anthony Barr granted leave on Monday to Mr McDonagh, with Brendan Hennessy BL, instructed by solicitor Padraig Ferry, for judicial review and returned the cases to mid December. A lead case is expected to be selected from among the challenges, the judge was told.
The Farrells claim the guidelines do not apply retrospectively to applications brought before they came into operation. If the court rejects that, they contend that requiring judges to establish guidelines infringes judicial independence for reasons including they were drawn up by a committee of judges and the council’s board was “at large” concerning them.
The guidelines are binding as judges can only depart from them if they think they don’t cover the injury, Mr McDonagh said. “It seems strange such an important change can be brought about to the decision making structure in the High Court without parliament taking the view that awards are too high. There is a complete lack of transparency and consistency.”
Aged in her sixties, from Kilminch, Co Laois, Rosemary Farrell brought her personal injury claim against the driver of a car which allegedly struck a horse led by her and ridden by Padraig on the road at Abbeyleix on May 31st last year. Vickey Farrell was leading another horse, ridden by her daughter Caoimhe, aged six.
Rosemary Farrell claims it was a bright sunny evening and they were all wearing high-vis jackets. She claims an approaching car did not slow down as it passed, struck the horse, causing injury to herself, her grandson and his mother and left the scene without stopping.
A bone in her leg was protruding through the flesh and her injuries were so severe an air ambulance took her to hospital where she underwent surgery, she says. She has permanent injuries and scarring as a result of the accident, she claims.
The challenges are against PIAB; the Judicial Council; Ireland and the Attorney General.
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