Man takes court challenge over personal injuries board assessment

A Dublin man has brought a High Court challenge after his road accident injuries claim was assessed as minor with a value of €14,000 by the Personal Injuries Assessment Board (PIAB) under new guidelines reducing awards, particularly for minor injuries.

Calvin Keating argues his claim for injuries in a road accident should have been assessed by PIAB under the old system rather than under new guidelines approved earlier this year by the Judicial Council.

He claims the injuries board failed to give adequate reasons for its assessment and for its decision to conduct that in line with the new guidelines in breach of his right to fair procedures.

In claims against the State, he contends that a legislative amendment under which a court hearing his case must have regard to the new guidelines, rather than the damages guidelines in the 2016 Book of Quantum, breaches his constitutional rights.

That amendment is “inconsistent with a just law on negligence” and legitimate expectation as it had the effect of “changing the rules” concerning Mr Keating’s claim between the date of the accident and the date of the PIAB assessment, James Devlin SC said.

On Monday, Mr Justice Charles Meenan granted leave to Mr Devlin, on an ex-parte basis (one side only represented) to bring the judicial review proceedings against PIAB, Ireland and the Attorney General.

The case arises from a road incident on March 20th 2019 as a result of which Mr Keating (21), a window salesman, of Shancastle Avenue, Clondalkin, claims he suffered injuries.

He applied to PIAB on December 4th 2019 for an assessment of his claim against the car driver. It is claimed PIAB was required to assess the claim within nine months from March 6th 2020.

Citing the impact of Covid-19 on its work, PIAB on November 20th 2020 extended the time to June 4th 2021.

That extension, combined with an amendment to the Personal Injuries Board Act 2003 which came into force on April 24th 2021, resulted in Mr Keating’s claim being assessed under the new guidelines and thus at a lower level.

Mr Devlin said there were issues about the delay by PIAB and about how PIAB performed its assessment.

It is claimed PIAB’s assessment that the dominant injury was a back injury of minor severity with a substantial recovery expected between one to two years was not supported by the reports of two medics who examined Mr Keating for PIAB. A decision by PIAB to allow €300 for future physiotherapy was also inconsistent with its view of a substantial recovery within one to two years.

Mr Keating also claims PIAB erred in not providing for damages for an injury to his right leg, hip and thigh.

In exchanges with the judge, Mr Devlin accepted the court would not make its own assessment of the medical evidence in judicial review proceedings. His case was that PIAB’s finding was “irrational” and the medical evidence did not support the prospect of a substantial recovery within two years.

The judge said he was satisfied the alleged wrongful retrospective application of the new guidelines was an arguable ground for judicial review. While he considered some of the grounds advanced were “more arguable than others”, he said he would grant leave on all grounds.

A hearing date will be set later.