“Pending but Not Yet Law” – The High Court Charts the Limits of Judicial Reliance on Draft Personal Injury Guidelines

1. Introduction

Case: Somers v Commissioner of An Garda Síochána & Ors [2025] IEHC 388.

Court & Judge: High Court (Ex-tempore), O’Higgins J, 14 May 2025.

Parties:

Plaintiff: Garda Mary-Jane Somers (18-year service member of An Garda Síochána).
Defendants: (i) Commissioner of An Garda Síochána, (ii) Minister for Justice, (iii) the Attorney General.

While essentially an assessment of damages for injuries suffered during the attempted rescue of a suicidal man, the judgment breaks new doctrinal ground in explaining how Irish courts may — and may not — use draft Personal Injuries Guidelines (PIG) awaiting ministerial adoption. Against the backdrop of inflation-adjusted figures recommended by the PIG Review Committee (March 2024) but not yet given legal force, the High Court had to decide whether, and to what extent, it could “peek” at those proposed increases when valuing non-fatal injuries.

2. Summary of the Judgment

The Court refused to apply the 2024 draft Guidelines as if they were operative law, holding that to do so would “elide constitutional procedures” as warned in Delaney v PIAB [2024] IESC 10.
Nevertheless, O’Higgins J accepted that a court may acknowledge macro-economic realities (e.g. inflation) signalled by the Review Committee when choosing a point within an existing bracket of the 2021 Guidelines.
Damages were assessed under four heads (PTSD, headaches, scalp scar, hair damage). Using the 2021 brackets and a one-third “roll-up” discount for non-dominant injuries (per Meehan v Shawcove), the Court awarded:
- €63,000 general damages (dominant PTSD €35,000 + €28,000 rolled-up uplift).
- €1,800 agreed special damages.
- Total: €64,800 plus costs.

3. Analysis

3.1 Precedents Cited

Delaney v PIAB [2024] IESC 10
• Supreme Court stressed that Guidelines only attain “binding with a small b” status after the statutory process in s.7 of the Judicial Council Act 2019 is completed.
• O’Higgins J borrowed the analogy of “a Bill versus an Act”, ruling that draft valuations cannot be applied wholesale.
Meehan v Shawcove Ltd [2022] IECA 208
• Introduced the modern “roll-up factor” (discount for overlapping injuries).
• Court of Appeal’s guidance used to discount non-dominant heads by one-third.
Zaganczyk v Pettit Wexford Unlimited Co [2023] IECA 223
• Re-affirmed that every injury must be compensated but courts must ensure global awards remain proportionate.

3.2 Legal Reasoning

(a) Applicability of Draft Guidelines

The 2024 draft PIG report lacks legal force until a ministerial statutory instrument is made (Judicial Council Act 2019, s.7).
Constitutional separation of powers prevents courts from acting as if an uncompleted legislative/executive process had concluded.
However, the Court recognised that Guidelines are “guides, not strait-jackets”. Judicial discretion within each bracket survives, so inflationary realities identified by the Committee may legitimately inform where the figure falls inside the 2021 range.

(b) Quantum Methodology

Identify discrete injuries; assign bracket values per 2021 Guidelines.
Select dominant injury (here, PTSD) then apply “roll-up” discount to remaining injuries (one-third in casu).
Global check of proportionality vis-à-vis €550,000 cap (<< cap) and other awards.

3.3 Likely Impact

The ruling will shape personal-injury practice in three concrete ways:

Road-map for Pending Guidelines: Until the Government signs the statutory instrument, courts will not embed the draft figures. Litigants may cite macro data to locate awards at the upper end of existing brackets, but cannot convert brackets directly.
Anchoring Quantum Arguments: Practitioners must plead and prove each injury’s bracket under the operative Guidelines; aspirational “future” brackets will be ignored unless and until promulgated.
Roll-up Factor Clarification: The decision confirms the Court of Appeal’s approach that discounts apply only to non-dominant injuries and the magnitude (0-50%) remains fact-specific.

4. Complex Concepts Simplified

Personal Injuries Guidelines (PIG): A schedule of bracketed monetary values for common injuries created by the Judicial Council. Judges must “have regard to” them; departures require written reasons.
Draft vs. Effective Guidelines: “Draft” guidelines arise from the Review Committee’s report. They become effective only after:
1. Judicial Council adoption;
2. Submission to Minister for Justice;
3. Statutory instrument made by Government.
Roll-Up (or Overlap) Discount: Prevents mathematical aggregation of overlapping injuries. A discount (often 30-50%) is applied to subordinate injuries to reach a proportionate global sum.
PTSD Brackets:
- Minor: largely recovered; modest persisting effects.
- Moderate: patient largely recovered but some continuing non-disabling symptoms.
- Serious: significant continuing effects, impairing daily life/work.
The plaintiff’s condition was placed at the upper end of “Moderate”.

5. Conclusion

Somers establishes an important procedural guard-rail: Irish courts cannot apply draft Personal Injuries Guidelines as if they were law, yet may temper their discretion within existing brackets by acknowledging the economic realities that prompted those drafts. The judgment harmonises the Supreme Court’s constitutional concerns in Delaney with the practical need for realistic awards in a period of inflation. Equally, the decision illustrates the modern three-step quantum methodology (dominant injury + roll-up + proportionality check) now embedded in Irish personal-injury jurisprudence.

Going forward, insurers, plaintiffs and practitioners will calibrate offers and submissions knowing that the 2021 brackets remain the lodestar until the statutory instrument issues. Meanwhile, the High Court signals that ignoring inflation entirely is no longer tenable; discretion within brackets is the release valve. The case therefore strikes a measured balance between strict constitutionalism and evolving socioeconomic contexts.