About this case:

• Citation:
  [2023] IECA 245
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Donald Binchy

Delivering judgment for the Court of Appeal, Mr Justice Donald Binchy ruled that the appellant was entitled to know the basis of the Board’s calculation of general damages “without having to resort to guesswork”, and that the basis upon which lesser injuries were taken into account “needed to be stated”, as the absence of those details inhibited “her capacity to arrive at an informed decision as to whether or not to accept the assessment”.

Background

The appellant, a catering assistant, claimed that she suffered multiple personal injuries in the course of her employment when an oven that she was cleaning fell onto her. An application for an assessment of damages was made to the respondent by the appellant’s solicitor on 20 February 2020.

On 25 June 2021, the respondent delivered an assessment of general damages in the sum of €11,000 by reference to the Personal Injuries Guidelines, but did not provide a breakdown of the sums attributed to the appellant’s “dominant” and “lesser” injuries.

The appellant’s solicitor informed her that he could not advise as to whether she should accept the assessment due to the absence of reasons as to how the sum was calculated, and wrote to the respondent stating that the appellant was prejudiced as she was obliged to accept or to reject the assessment within 28 days, failing which she would have to issue legal proceedings and become exposed to the risk of an adverse costs order, and that she could not be adequately advised without proper reasons accompanying the assessment.

The appellant further invited the respondent to withdraw the assessment and to issue a “proper” assessment in accordance with the Guidelines within 28 days.

By the time the respondent replied refusing her request, the appellant had already issued judicial review proceedings.

The High Court

The trial judge noted at the outset that the appellant had accepted that the Guidelines do not mandate the provision of reasons in relation to the application of the Guidelines by the respondent, and that there is no statutory provision by which reasons are mandated. Consequently, the trial judge decided that the application fell to be assessed in accordance with general constitutional principles of fair procedures.

Following a consideration of the relevant jurisprudence on the duty to give reasons for administrative decisions, the High Court concluded that considering the information provided to the appellant, the nature of the process, the non-binding nature of the respondent’s decision and the lack of statutory obligation to state reasons, an objective observer would be aware of the general reasons for the assessment.

The appellant argued that more detailed reasons were necessary having regard to s.51A of the 2003 Act, which provides that where a claimant has rejected an assessment which has been accepted by the respondent, and the court awards the claimant less than the amount rejected, then the court may order the claimant to pay all or part of the costs incurred by the respondent in the proceedings. The trial judge rejected this argument, considering effect of the provision as no different than a Calderbank letter or a lodgement.

Accordingly, the High Court refused the reliefs sought.

The appellant appealed, firstly contending that the trial judge erred in holding that the assessment contained adequate reasons based on the jurisprudence.

Secondly, the appellant contended that the trial judge erred in holding that there was no difference between the potential prejudice to the appellant having not received adequate reasons for the assessment where rejection would expose her to an adverse costs order pursuant to s.51A of the 2003 Act, and the potential prejudice to a claimant to whom a “without prejudice as to costs” offer is made or where a lodgement is made.

The Court of Appeal

Observing that there was no significant divergence of views in the parties’ submissions as to the adequacy of reasons for administrative decisions, Mr Justice Binchy noted that it was unnecessary to look further than the judgment of Mr Justice John MacMenamin in Náisiúnta Leictreach Contraitheoir Eireann (NECI ) v the Labour Court, Minister for Business, Enterprise and Innovation, Ireland and the Attorney General [2021] IESC 36.

The court agreed that the distinction drawn by the appellant between the effect of a Calderbank letter or lodgement, and the effect of the application of s.51A of the 2003 Act was an important one, finding that since “the respondent and the courts are obliged to have regard to the Guidelines, it follows that if a claimant can be satisfied that the respondent has done so, then he or she may be unwise to reject the assessment of the respondent and assume the costs risks associated with proceedings by reason of s.51A”.

Mr Justice Binchy continued, noting: “The basis of the calculation of an assessment by the respondent is therefore a matter of critical importance to a claimant, and claimants are entitled to be given information sufficient to understand the basis of its calculation of general damages.”

Finding that the appellant’s multiple injuries and the fact that her back injury could be considered to straddle two sub-categories of injury tended to complicate matters, the court warned that the assessment of the appellant’s back injuries without reference to the “lesser” injuries made it “impossible for her to know or even to surmise how or on what basis those lesser injuries have been taken into account in the assessment”.

Considering the affidavits of the respondent, Mr Justice Binchy found that the respondent had taken the lesser injuries into account and had, therefore, placed her assessment at the higher end of the sub-category. Nonetheless, the judge considered that “the appellant had no way of knowing what sum, if any, has been allowed to reflect the lesser injuries in the assessment”.

The court remarked that “the provision of information to indicate in what manner, or more specifically in what amount, the appellant’s lesser injuries are reflected in the award, would not have necessitated a detailed or discursive decision”, finding that the necessary information could have been provided in “one simple sentence”.

Conclusion

Allowing the appeal, the Court of Appeal quashed the respondent’s assessment and referred the matter back to the respondent for re-consideration with the provision of adequate reasons to explain the assessment of general damages having regard to all the injuries suffered by the appellant.

The costs of the High Court and Court of Appeal proceedings were awarded to the appellant.

Wolfe v. The Personal Injuries Assessment Board [2023] IECA 245