Judges can depart from the guidelines slashing damages for many minor personal injuries if they feel the award does not do an injury justice, lawyers for the State have told the Supreme Court.
Eoin McCullough SC, for the State, fielded several questions on Wednesday from the seven-judge court positing hypothetical scenarios in which judges might be entitled to make a higher award than is set out in the guidelines.
He said judges are expected to follow the guidelines, but if he or she believes these figures are “simply wrong” the Judicial Council Act of 2019 provides for a departure.
Asked by Mr Justice Brian Murray if “mere disagreement” with a value given in the guidelines allows for departure, Mr McCullough said it does as long as other principles, such as proportionality, are observed and reasons are set out.
A judge cannot diverge by simply “throwing up his hands”, counsel added.
Personal injuries assessment
Mr McCullough was making submissions on the second and final day of Bridget Delaney’s appeal in her case against the Personal Injuries Assessment Board (Piab), Ireland, the Attorney General and the Judicial Council.
The court said it was reserving its decision.
The Dungarvan resident’s action challenges guidelines drafted by the Personal Injuries Guidelines Committee of the Judicial Council, as required by the 2019 Act. They came into force in April 2021, after they were approved by a majority of 146 members of the Judicial Council.
At the opening of her case on Tuesday, Ms Delaney’s lawyers submitted that the guidelines interfered with the independence of the courts and her rights.
The Judicial Council’s passing of the guidelines in March 2021 was a “legislative act cloaked in a veneer of judicial action” and amounted to an unconstitutional interference with judicial independence, her side argued.
On Wednesday, Mr