A challenge by a hospital catering assistant to a proposed €11,000 damages award under controversial new guidelines for soft tissue injuries suffered after an oven fell onto her opens on Tuesday at the High Court.
The award was made to Tara Wolfe by the Personal Injuries Assessment Board(PIAB) last June under guidelines slashing awards for minor personal injuries by up to 50 per cent which came into effect last April after being approved by a majority of the Judicial Council.
Ms Wolfe’s judicial review challenge against PIAB centres on her claim the board failed to give adequate reasons for its proposed award of €11,000. Several other challenges brought on reasons grounds have been taken and are awaiting a hearing.
Judgment is pending on a separate challenge, with potentially far-reaching implications, against PIAB and various State parties concerning the constitutionality of the guidelines. That case was brought by Bridget Delaney, from Dungarvan, Co Waterford, after PIAB assessed damages under the new guidelines for an ankle fracture at €3,000 when, she claims, it should have been assessed under the previous guidelines for between €18,000 and €24,000. Ms Delaney’s case was heard by Mr Justice Charles Meenan over several days in March and he reserved judgment.
In her action, Ms Wolfe (40), a mother of two, of Donard Drive, Dublin 7, represented by Feichin McDonagh SC and Eileen Barrington SC, with Brendan Hennessy BL and John O’Regan BL, wants orders quashing the PIAB assessment of June 25th 2021 and requiring the Board to reconsider her application and provide written reasons concerning its use and application of the guidelines.
The case arises from an accident at the Mater Misercordiae Hospital in Dublin on December 26th 2018. Ms Wolfe claims, when she was cleaning a heavy oven in the hospital kitchen, it fell on her due to not being properly secured to the wall, she had to hold it and push it back, and support its weight for about one minute before eventually managing to push it from her torso.
It is claimed the accident caused Ms Wolfe personal injuries, in particular soft tissue injuries to her left shoulder, lower back and right leg.
Safe place of work
She instructed Rogers Law Solicitors to make a claim against the Mater alleging negligence and failure to provide a safe place and system of work and various medical reports were provided.
PIAB, with reference to the new guidelines, assessed the dominant injury as a minor back injury involving a substantial recovery between one to two years.
Ms Wolfe claims, without any other reasoning, the general damages claim was assessed for €11,000. Among various claims, she alleges it is not apparent how PIAB concluded the dominant injury was a minor back injury and how any regard was had to the fact she had a pre-existing back condition.
The guidelines, it is claimed, mandate a more detailed analysis and the provision of detailed reasons. PIAB, it is argued, bears the same responsibility as the courts to “have regard” to the guidelines.
The PIAB assessment, it is argued, does not accord with the guidelines, the requirements of the PIAB Act 2003, the obligation to provide reasons for a decision, fair procedures and natural justice.
Ms Wolfe is prejudiced because the alleged failure to give adequate reasons means her solicitors are not in a position to advise her whether the PIAB assessment was properly and fairly arrived at and whether she should accept it, it is claimed. If she rejects the award and fails to get higher damages from a court, she may be subject to an adverse costs order.
In opposing the proceedings, PIAB denies its reasons were inadequate or that its assessment was not in accordance with the guidelines and the principles governing an award of damages at law.
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