A Supreme Court judge would have allowed Bridget Delaney’s appeal against a Personal Injuries Assessment Board assessment and ordered a fresh assessment under the law that applied before 2021, according to a separate judgment by Ms Justice Faherty.
Faherty’s judgment, dated 9 April 2024, sets out the orders she would have made. It is not a report of a single court outcome: her conclusions differed from those of other judges on key issues, and the supplied extract does not state the Court’s overall orders.
Delaney applied to PIAB on 29 May 2019 after sustaining an injury on 12 April 2019. PIAB assessed her claim under the personal injuries guidelines adopted by the Judicial Council on 6 March 2021. Its assessment, issued on 14 May 2021, valued general damages at €3,000, the top of the guideline range for a minor ankle injury. The assessors considered that she had made substantial recovery within six months.
Delaney rejected the assessment and obtained authorisation to bring a personal injury claim against Waterford City and County Council. Faherty noted that the claim had not yet been heard, including the question of whether the council was liable. The damages assessment was therefore distinct from any finding on liability or the amount ultimately recoverable in that action.
Faherty agreed with Justice Collins that the guidelines had normative effect and that the legislation contained sufficient principles and policies to avoid an unlawful delegation of legislative power. She also agreed that judges could depart from the guidelines if they had regard to them and gave reasons, though she considered the scope for departure very limited.
But Faherty concluded that requiring the Judicial Council, comprising the judiciary, to adopt guidelines with normative effect impermissibly blurred the constitutional boundary between judicial and legislative functions. She would have declared section 7(2)(g) of the Judicial Council Act 2019 unconstitutional in its present form, having regard to Articles 6, 15.2, 34 and 35 of the Constitution.
She also agreed with Justice Hogan that the 2021 legislation indirectly confirmed the guidelines, curing the constitutional defect in their adoption. However, Faherty considered the law unconstitutional insofar as it required the guidelines to be applied to Delaney’s pending claim. She would have quashed PIAB’s assessment and remitted the application for a fresh assessment under pre-2021 law and the Book of Quantum.