To what extent is judicial discretion fettered by the Personal Injuries Guidelines? When, and in what circumstances, and to what extent, may a judge depart from the Personal Injuries Guidelines?
Background
The Personal Injuries Guidelines (hereinafter the ‘PIGs’) have changed the landscape for assessment of damages for personal injury. In the recent Supreme Court decision in Delaney v PIAB [2024] IESC 10 there was an amount of judicial discussion (and disagreement) as to the existence, nature, and scope of judicial discretion to depart from the PIGs.
In this article I will attempt to distil the principles that emerge from the Delaney decision insofar as they relate to judicial discretion to depart from the PIGs.
Judicial Obligations
Section 22 of the Civil Liability & Courts Act 2004 (as amended by section 30 of the Family Leave and Miscellaneous Provisions Act 2021) provides that a court, in assessing damages in a personal injuries action, shall:
“have regard to the personal injuries guidelines, and, where it departs from those guidelines, state the reasons for such departure in giving its decision.”
A judge is accordingly entitled to depart from the guided range, but this raises questions as to the scope for departure – ‘what reasons or other matters could justify departure?’, and ‘what is the extent of departure from a given range that could ever be justified?’
Supreme Court
Seven judges of the Supreme Court sat in Delaney v PIAB and five judgments were given. All dealt, to a greater or lesser extent, with the scope for departure from the guidelines. I include links to the judgments below for ease of reference:
- Collins J (with whom Murray J agreed) (view judgment)
- Charleton J (view judgment)
- Haughton J (view judgment)
- Faherty J (view judgment)
- Hogan J (with whom Whelan J agreed) (view judgment)
Other ancillary matters that arose in Delaney, and which are dealt with below, include:
- an acknowledgment that the PIGs might themselves contain errors;
- a discussion of the approach to be adopted where an injury might fall into two different categories of the guidelines; and
- a possible view that multiple injuries might themselves be a reason for departing from the Guidelines.
The ‘Test’ for Departure
According to the case summary published by the Supreme Court, three members of the court (Charleton, Collins and Murray JJ) were of the view that the guidelines should only be departed from where there is no reasonable proportion between the guidelines and the award which should otherwise be made.
Two members of the court (Haughton and Faherty JJ) were of the view that the guidelines should only be departed from for rational, cogent and justifiable reasons.
Insofar as there is (or may be) a qualitative difference between these two ‘tests’, it may be worth noting the following:
- On my reading of the judgment of Charleton J, he does not expressly adopt the ‘test’ formulated by Collins J. He mentions both tests in the course of his judgment and there is nothing (in my view) to indicate that he expressly prefers one over the other.
- As far as I can see (and I am, of course, open to correction on this) Hogan J did not expressly advert to the circumstances in which the guidelines could be departed from. He agreed with Haughton and Faherty JJ on other matters and, had he agreed with them on their view that the guidelines should only be departed from for rational, cogent and justifiable reasons, this would have become the majority view
Collins J
“In the ordinary way, questions as to the weight to be given to the Guidelines and the types of factors that might warrant departing from them would be addressed and clarified on a case-by-case basis, by reference to concrete facts and circumstances, in the manner characteristic of the common law. […] This Court, hearing a constitutional action, is clearly not in a position to be prescriptive as to the application of the Guidelines in all circumstances and to attempt to do so would be at odds with the flexibility that the Oireachtas has deliberately built into the statutory scheme.” (@ para 123)
“An award in accordance with the Guidelines ought to be the presumptive starting point. In many if not most cases, that will also be the end point. However, if in the particular circumstances of an individual case, the relevant court is satisfied that such an award would not represent just compensation for the particular injury at issue […] the court may and indeed must depart from the Guidelines to the extent that it considers necessary to avoid injustice. But that, without more, is a statement of a (significant) constitutional backstop rather than a useful practical standard.” (@ para 128)
“Ultimately, a court may depart from the Guidelines where it is of the view that the award indicated by the Guidelines bears no just or reasonable proportion to the award that the court would otherwise consider it appropriate to make. In making that assessment, the court may have regard to relevant previous awards and there may be cases where, on that basis, the court concludes that the threshold for departing from the Guidelines is met. Beyond that, this Court should not venture in this appeal.” (@ para 134)
“Where a court does depart from the Guidelines, it must give its reasons for doing so and, in the event of an appeal, those reasons, and any associated findings of fact, can be considered. Having regard to the test as I have proposed it, that requires the court to explain precisely why it has concluded that the award yielded by the guidelines does not bear a reasonable proportion to the award the court would otherwise consider appropriate.” (@ para 135)
“The fundamental point is that if a court considers that, in the particular circumstances presented to it, the application of the Guidelines would lead to injustice or unfairness because the award yielded by the Guidelines does not bear a reasonable proportion to the award the court would otherwise consider appropriate (in the sense indicated above), then the court is entitled to depart from them to the extent necessary to avoid such justice or unfairness.” (@ para 137)
CHarleton J
“It does not prescribe when there may be departure from the guidelines, but as Meenan J reasoned in the High Court, where there is to be an award outside what is suggested by the guidelines, the requirement of reasons, which he describes as requiring logic which is ‘rational, cogent and justifiable,’ is no more than what is required in administrative law. That requirement is not burdensome; certainly no more so than the reasons required in administrative law to justify a decision.” (@ para 19)
“[T]here may come a point where a judge finds that as a matter of judicial assessment the nature of what a plaintiff has suffered would not be fairly compensated by the described category and level in the guidelines. Collins J characterises this, correctly, as bearing no reasonable relation to the pain and suffering forced on a plaintiff through the tort of another.” (@ para 23)
“While the guidelines are there to assist, no judge is obliged to reach an assessment of damages that yields an unjust result because, to adopt the test from Collins J, there is no reasonable relation as between what a plaintiff has suffered and the amount of damages which the guidelines suggest.” (@ para 24)
Haughton J
“Were a trial judge to attempt to depart from a Guideline band without rational, cogent and justifiable reason it is likely that the award would be struck down on appeal. However this does not assist in identifying the possible reasons that a judge might give for departing from the Guidelines, and which would potentially withstand scrutiny in an appellate court.” (@ para 35)
“‘[R]ational, cogent and justifiable‘ is I believe the correct test by which a departure from the Guidelines must be justified.” (@ para 52)
“There is no doubt that the principle of proportionality is integral to the Guidelines, and this presents a hurdle for any judge considering departure. In my view it is surmountable, but only for ‘rational, cogent and justifiable’ reasons, and even then it is hard to see how there is scope for any significant departure from the guideline figure. If departure is warranted it is in my view difficult to conceive of it justifying any departure beyond one band above that which would normally apply to the injury.” (@ para 56)
At paragraph 59 of the judgment, Haughton J sets out the factors which, in his view, must be present in order for a departure from the PIGs to withstand appeal:
- It is firstly mandatory that the court ‘have regard to’ the Guidelines, and the court should make findings of fact that point to the category, bracket and band that would normally apply to the particular injury;
- the reasons given for departure from that band must then be stated;
- such reasons would need to be rational, cogent and justifiable;
- the reasons would need to justify not just departure from a band, but the extent of any departure, particularly if it resulted in a significant increase in the award;
- while exceptional circumstances is not the statutory test for departure, having regard to the comprehensive nature of the Guidelines, the use of recent Irish caselaw to inform their preparation, and the principle of proportionality that underpins them, in practice it will only be in exceptional circumstances that a court could justifiably depart from them;
- it would not be legally permissible to base a departure from the Guidelines on the judge’s own notion of what is appropriate compensation, in effective disregard of the Guidelines;
- it would not be good reason to base a departure on higher levels given in the former Book of Quantum, or any court award based on same, as they cannot be said to reflect the new norms for levels of compensation, and the Committee deliberately did not use them as a starting point, or point of comparison;
- equally it would not be appropriate to base departure on comparison with preGuidelines caselaw on quantum in similar cases – as that caselaw was taken into account by the Committee in preparing proportionate brackets/bands in the Guidelines, and has therefore already been factored in, and is now superseded by the Guidelines. The Guidelines would soon lose their integrity if judges could rely on earlier precedent to award higher amounts than the top of the indicated range, and the principle of proportionality of awards inter se and with the cap on damages would soon be eroded to nothing;
- the clear objectives of consistency and predictability militate against departure save in circumstances – probably exceptional – not contemplated or covered by the detail in the Guidelines;
- the principal of proportionality requires that the court would have to consider the effect of the departure on (a) injuries within the higher chosen band, and (b) the bands in respect of other injuries, and show why the integrity of the Guidelines would not be adversely or materially affected.
“I am forced to the conclusion that there are very real limits to the circumstances in which, and extent to which, a court may depart from the Guidelines and the bands that they establish, the nett effect of which is that they are much more than the word guidelines would normally signify. They are in effect comprehensive new rules that implement a systematic recalibration of damages, by reference to the cap of €550,000 and a largely new hierarchy of seriousness.” (@ para 75)
“Collins J. in his judgment suggests as the threshold for departure that a court can depart if the award indicated by the Guidelines bears no just or reasonable proportion to the award that the court would otherwise consider it appropriate to make having regard to the evidence and submissions it has heard. That formulation seems to me to contradict the fact that the Guidelines were prepared by the Committee and adopted by the Judicial Council precisely because they are considered to be fair, just and proportionate, and of course the same presumption will apply to any revised Guidelines adopted in future. It suggests that a judge (or PIAB) adopt a deductive process which ultimately leaves as the tipping point for departure the judge’s subjective view of what is proportionate. Further the suggestion that they can be departed from if the award ‘would fail to vindicate the personal rights of that plaintiff under Article 40.3‘ may well be right, but, much like reliance on the concept of ‘injustice‘, it is vague and does nothing to demonstrate in real or practical terms the circumstances that would justify departure.” (@ para 80)
Faherty J
“…I take a different view to that of Collins J. on the actual scope that is available to a court or judge to depart from the Guidelines…” (@ para 3)
“…I have also had the opportunity of reading the judgment of Haughton J. in draft and I entirely agree with his conclusions (which align with my own) as to the scope to depart from the Guidelines…” (@ para 4)
“The real debate in this case, insofar as the obligation on a court to ‘have regard to’ the Guidelines is concerned, centres not on the power of a judge to depart from the Guidelines, but rather on what might be the identifiable reasons upon which a judge might depart, and the basis upon which his or her reasons for departure from the Guidelines would likely be upheld or set aside by an appellate court in the event of an appeal.” (@ para 13)
“…I am of the view that the actual scope available to a court in any given case to look beyond the Guidelines is rather more limited than Collins J. envisages. This limited nature of a court’s scope for departure underpins the normative effect of the Guidelines, in my view. […] [T]he combined effect of the recalibration of general damages awards effected by the Guidelines, together with the substantive requirement of s.22(1) of the 2004 Act that a court must ‘have regard to’ the Guidelines and if departing from them give reasons, is that the scope for a court to look beyond the Guidelines has been considerably circumscribed.” (@paras 14-15)
“Given that pre-Guidelines awards have already been factored into the figures provided for in the Guidelines, together with the fact that those figures must be read as encapsulating the principle of proportionality, this begs the question, in a case where a judge who has had regard to the Guidelines but who nevertheless is minded to depart from them on the basis that an award within the Guidelines would not be consistent with the principle of proportionate compensation for the injury sustained, as to what or where a judge is to turn, in order to justify a departure from the Guidelines. This question arises in circumstances where, as I have said, the path upon which a judge would ordinarily have departed has been substantially circumscribed by the incorporation of the pre-existing case law into the Guidelines. In my view, there is no easy answer to this question, and it may be that time will tell, by which I mean that in due course, there will be a body of case law in respect of this new personal injuries regime from which established principles will emerge as to what constitutes a reasonable or proportionate basis for departing from the Guidelines.” (@ paras 21-22)
Hogan J
Interestingly, the first 59 paragraphs of the judgment set out how Hogan J. would have decided the appeal. As he puts it at paragraph 60:
“The foregoing paragraphs represent how I would have originally decided this appeal. Since first preparing this judgment, however, it has subsequently become clear that a majority of the Court is of the view that the guidelines have a normative effect and enjoy a prima facie binding status. […] I should stress that it is this particular conclusion which entirely informs and governs the remainder of this judgment.” (@ para 60)
In those first 59 paragraphs, Hogan J expresses the view that:
- everything turns on the status of the guidelines and the extent to which they bind the courts (@ para 49)
- the courts cannot properly be regarded as being bound by these guidelines […] If, for example, the Court of Appeal has already determined in a particular case that a personal injuries award in respect of a fractured ankle should be between X thousand Euro and Y thousand Euro, the precedential status of that decision could not be changed by guidelines of this nature. (@ para 55)
As far as I can see (and I am, of course, open to correction on this) Hogan J did not expressly advert to the circumstances in which the guidelines could be departed from. He agreed with Haughton and Faherty JJ on other matters and, had he agreed with them on their view that the guidelines should only be departed from for rational, cogent and justifiable reasons, this would have become the majority view.
Errors in the Guidelines?
Collins J acknowledged the possibility of error in the Guidelines and acknowledged that the severity of a category of injury may be under- or over-estimated:
“[N]either the Committee that drew up the Guidelines nor the Council that adopted them, was omniscient or infallible. In any exercise as ambitious and challenging as was involved in the adoption of comprehensive and detailed personal injury guidelines covering all injuries from the most serious to the most minor and addressing complex issues such as the assessment of damages in cases of multiple injuries, there is the possibility of error. The severity of a category of injury may be under- or over-estimated.” (@ para 142)
One Injury – Multiple Categories
Given the extent to which judicial discretion has been impacted by the PIGs, and the acknowledgment that the PIGs themselves may contain error, it is likely that judges will increasingly be confronted with arguments that a particular injury falls to be assessed under category ‘X’ rather than under category ‘Y’.
This was acknowledged by Haughton J in his judgment:
“[I]n many cases there may be no dispute as to the category and range within which the injury falls, and in such cases the only discretion afforded the judge will be to award a figure within the appropriate range. To wander outside that range in such cases would be to invite the appellate court to correct the award to bring it into line with the Guidelines. Even within that range, if the judge awards a figure at the top of the range which is not proportionate to the Guideline indicative figures for different injuries that are by their nature more serious, or by reference to the cap on damages, then the award may be the subject of appellate review and alteration.
In other cases the choice of the bandwidths may be in controversy, and the court will need to decide the appropriate band, based on the evidence and argument, and it may be advisable that the court give reasons that justify such choice. A judge who places an injury within a Guideline band which is clearly inappropriate will have their decision set aside on appeal. If a well-reasoned decision has been taken in favour of the higher of two possible bands the Guidelines again come into play in that the court must then decide where in that range the injury falls, and consideration of proportionality with other types of injury is likely to come into sharper focus.” (@ paras 60-61)
Multiple Injuries – A Basis for Departure?
Charleton J gave an example in his judgment of a plaintiff who had suffered multiple injuries and suggested that in such circumstances there is a reason for departure from the Guidelines. The full text of the example is worth considering:
“An example may illustrate that point. While certainty of law demands that these guidelines be the basis of awards in so far as that is possible, there will be some cases which require departure. Suppose a person is subject to an all too frequent accident in consequence of driving a car whereby they are struck by another vehicle or, in consequence of a spillage on the road, looses control and collides with an object, the result may be a whiplash or back injury. That injury will suggest a particular level of compensation, depending on duration and severity. These are facts for judicial assessment. For a sedentary job, that in an office, the injury may be inconvenient, debilitating or really difficult to live with. Sport may have to be given up, perhaps to be taken up again at a lesser level. But where the person lives with the injury and, as the law demands gets on with their life and takes whatever treatment is advised, these are predictable scenarios within which the guidelines operate.
Now, apply the same injury to a farmer; a person whose instrument of work is both their body and their ability to reason. That farmer suffers a similar accident but is a person who makes a living from managing and milking a herd of cows. Physical effort using the entire body is required in bringing the animals to be milked, in putting out very heavy bags of specialised feed, in confining animals in a crush to administer medication, in assisting in calving and in the myriad of other tasks that animal husbandry demands. Unable to fulfil those duties, and having built up a herd over decades through selective breeding and by buying in the most useful animals, with little or no help available, the farm starts to go from under the farmer’s control. Helpless, the farmer slips into reactive depression which moves to its blackest point when the entire herd must be removed by lorry because it can no longer be cared for. What if the depression causes suicide through insanity; what if the consequence is a destroyed family with the plaintiff forced into a life of loneliness; what if there are years and years of blackness despite family support and in the face of real suffering? Guidelines do not provide for everything or every possible situation or life-experience.
In such circumstances there is a reason for departure from the guidelines. While a psychiatric component may be added, overall what has happened is beyond the experience to be expected. That is the key. In consequence of injury of a particular kind there are predictable and unpredictable paths down which people are forced to tread. It might be the same were a severe pain syndrome to attach to a recoverable injury and for its intensity to utterly discommode a life. Were it not possible to depart from the guidelines, it might validly be argued that these had the force of law, but that is not the case. Good reason for departure is built into this system. Of itself that system is valuable in advising litigants and in guiding judges. But, of their nature, guidelines may be departed from with reason.” (@ paras 25-27)
Whether this reasoning will be adopted in future, and whether multiple injuries will be seen as a basis for departure from the Guidelines, remains to be seen. However, in light of the well-established jurisdprudence in relation to the assessment of damages for multiple injuries (see my related article Assessing ‘uplift’ for Multiple Injuries), such a development seems unlikely.
Last Updated: 19 June 2024