Robert Troy (Longford-Westmeath, Fianna Fail) | Oireachtas source

While there was some support for this type of approach in reforming PIAB, strong arguments against it come from the Attorney General. This is because such an approach might impinge on the constitutional right of access to justice delivered by the courts, as well as the primacy of the courts regarding the administration of justice, particularly in respect of a body of common law. Personal injury claims may be resolved by direct settlement between the parties, a PIAB assessment or litigation. Court decisions ultimately determine matters such as liability and overall damage levels. The new and reformed PIAB model preserves the constitutional right of access to the courts. There are constitutional guarantees that a citizen has a right of access to the courts and a right to litigate.

The decision of the Supreme Court in the Zalewski v. WRC case provides important context for any consideration of a possible quasi-judicial role for PIAB. While the Supreme Court found the WRC to be administering justice, it also found that this was permissible under Article 37 of the Constitution, given the limits of the subject matter applicable to cases coming before the WRC. A similar argument may not be successful regarding PIAB, given that personal injury claims involve broader legal considerations that have been determined by the courts over time, rather than the statutory employment law issues which come before the WRC.

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