O'Brien v Personal Injuries Assessment Board

• Jurisdiction: Ireland
• Judge: Denham J.,Macken, J.
• Judgment Date: 19 December 2008
• Neutral Citation: [2008] IESC 71
• Court: Supreme Court
• Docket Number: [S.C. No. 169 of 2005],[S.C. No: 240/2007]
• Date: 19 December 2008

Between/

Declan O'Brien

Applicant/Respondent

and

The Personal Injuries Assessment Board

Respondent/Appellant

and

The Law Society of Ireland Amicus Curiae

Murray C.J.

Denham J.

Macken J.

[S.C. No: 240/2007]

[2008] IESC 71

THE SUPREME COURT

Abstract:

Tort law - Personal Injuries - Right to a lawyer - Right to legal representation - Personal Injuries Assessment Board - Law Society - Statutory interpretation - Expressio Unius est exclusio alterius - Personal Injuries Assessment Board Act 2003

Facts: The applicant challenged the policy of the Personal Injuries Assessment Board (PIAB) to decline to correspond directly with the applicant as being in breach of s. 7 of the Personal Juries Assessment Board Act 2003. The applicant suffered personal injuries and had been informed by PIAB that he would not need the services of a solicitor at all and that it was appropriate only to correspond directly with PIAB. The High Court held that the policy of PIAB was in breach of s. 7 of the Act of 2003

Held by the Supreme Court per Denham J (Murray CJ, Macken J. concurring) that the right to legal representation had a special place in the common law adversarial world. The Act of 2003 had not expressly excluded lawyers from acting for claimants. The policy of PIAB had not been shown to be necessary, expedient or incidental to the functions of PIAB. The right to legal representation was a legal right. A claimant could choose to be legally represented. PIAB had no power to adopt the policy established. The appeal would be dismissed.

Reporter: E.F.

1 Judgment delivered the 19th day of

2 December, 2008 by Denham J.

3 1. The right to legal representation is at the core of this appeal.

4 2. This is an appeal by the Personal Injuries Assessment Board, the respondent/appellant, hereinafter referred to as 'PIAB', from the judgments of the High Court (McMenamin J.) [2007] 2

• I.R. 1, and [2007] 2 I.R. 1 at p.40. Declan O'Brien, the applicant/respondent, is referred to as 'the applicant'. The Law Society of Ireland is before the Court as an amicus curiae by order of this

5 Court.

6 3. There was a single issue determined by the High Court and that issue is before this Court on appeal.

7 4. The High Court declared, on the 11th March, 2008, that:

8 "[PIAB] in declining to accept or act upon the authorisation dated the 16th August, 2004 (described as "a confirmation

9 and authority by client") by corresponding directly with the Applicant (and copying such correspondence to his Solicitors) is acting in breach of s. 7 of the Personal Injuries Assessment Board Act 2003 or without authority under any other provision of the Act."

• 5. Having regard to that declaration the High Court did not find it necessary to rule on the balance of the issues referred to in the list of issues agreed between the parties.

• 6. The facts of this case were stated by the learned trial judge. With the benefit of his findings, I summarise the relevant facts in the following paragraphs.

• 7. The applicant is a single man who, at the relevant time for this action, was employed at the premises of Galtee Meats, in Co Westmeath, as a boner in a meat factory, and was working on a

10 sub-contract to a company known as Ard Meats Limited. In his job he boned carcasses of beef at a table.

11 8. The applicant alleges that in the course of his employment on the 5th November, 2001 he was involved in an accident. He claims that an overhead line which was carrying carcasses of meat

12 collapsed, as a result of which he was struck on the back and sustained injuries. He was taken to hospital and had a bone scan. As a result he was certified 'off-work' for a period of approximately

13 four months. It is claimed that he had a gradual return to work with periods off work when his back pain became acute. The applicant returned to work in February 2002. However, he claims that

14 he was able to produce only 75% of his previous output and that his earnings have suffered. He claims that he suffers pain and aches at the end of a day's work.

15 9. The applicant did not commence proceedings immediately after the accident. However, on the 12th August, 2004 he attended at a solicitor's office and instructed Mr. Denis Boland of P.V.

16 Boland & Co.

17 10. The applicant was told that under the Personal Injuries Assessment Board Act 2003, 'the Act of 2003', his claim would have to be initiated by applying to the PIAB.

18 11. Time was running in the case. The three year limitation period would run its course approximately eleven weeks after the applicant consulted his solicitor. Prior to the Act of 2003 the

19 applicant's solicitor would have protected his position regarding the three year time limit by issuing a plenary summons in the High Court.

20 12. Mr. Boland, the applicant's solicitor, on the 16th August, 2004 telephoned and had a conversation with a Ms. Jo Crowley, at a call centre which acted as an agent to which PIAB

21 outsourced the business of processing claims. Mr. Boland gave particulars of the claim and expressed his concern regarding the Statute of Limitations. He indicated that he would be sending an

22 authority to PIAB on behalf of the applicant, this would require PIAB to deal directly with him as the applicant's solicitor. Mr. Boland was asked for the applicant's phone number.

23 13. Within a few hours Ms. Crowley contacted the applicant on his mobile phone. By the end of the conversation the applicant had formed the view that he was being told by Ms. Crowley that

24 he did not really need the services of a solicitor and that all he needed to do was to send a medical report to the Board.

25 14. The learned trial judge held that the applicant's view was erroneous.

26 15. The applicant was resentful of what he perceived as the position of PIAB.

27 16. Mr. Boland completed the application form, which he had obtained from PIAB. He also completed a 'Confirmation and Authority' document signed by the applicant. By this document Mr.

28 Boland had authority: (1) to act with reference to the applicant's claim before PIAB, (2) to receive all settlement cheques, (3) solely to deal with all correspondence on behalf of the applicant, and

29 (4) to act in any subsequent court proceedings. The document also recited the applicant's liability for all

30 necessary outlay and legal costs incurred in proceedings before PIAB and acknowledged

31 that PIAB would not pay the applicant's legal costs.

32 17. Mr. Boland wrote to the consultant surgeon who had treated the applicant. He was concerned because he had not received a medical report. He was also concerned that in the absence of

33 a medical report the application to PIAB would not be considered complete. In other words he intervened to expedite matters.

34 18. On the 19th August, 2004, PIAB wrote directly to the applicant. This was contrary to the procedure proposed by the applicant and Mr. Boland and at variance with the authority which had

35 been given to PIAB.

36 19. On the 24th August, 2004, Mr. Boland wrote to PIAB complaining that they had not recognised the authority he had furnished, which authorised him to act for the applicant. He also

37 indicated his difficulties in getting a medical report and his concern about not getting one before the expiry of the three years under the Statute of Limitations.

38 20. On the 26th August, 2004, Mr. Boland received a call from a Mr. Hewson of PIAB indicating that it would not deal directly with solicitors, but that PIAB would furnish copy

39 correspondence to Mr. Boland.

40 21. It was stated that the applicant's claim would not be registered without a medical report.

41 22. There was correspondence and telephone calls in September. It emerged that PIAB would register the claim if the solicitor had not obtained a medical report for his client by the 31st

42 October, 2004.

43 23. On the 7th September, 2004, the applicant initiated judicial review proceedings seeking an order of mandamusdirecting PIAB formally to record and register the

44 applicant's claim to stop

45 the Statute of Limitation from running in respect of his claim, and to register his claim, having recorded it on the 19th August, 2004. An injunction was also sought directing PIAB to stop and cease

46 the interference in the client/solicitor relationship between the applicant and his solicitor, and an order seeking that PIAB abide by the irrevocable authority signed by the applicant on the 16th

47 August, 2004, in relation to his claim.

48 24. There were appearances in the High Court. The medical report arrived from the medical consultant, signed on the 18th October, 2004, and was furnished to PIAB, and the claim was

49 registered on the 22nd October, 2004. Therefore, it was unnecessary to pursue the relief of mandamus.

50 25. On the 1st December, 2004, the Law Society was permitted to appear in the proceedings as an amicus curiae, [2005] 3 I.R. 328.

51 26. Issue Paper

52 An issue paper was agreed by counsel for the parties. The first issue was whether PIAB, in declining to accept or act upon the authorisation dated the 16th August, 2004, and by corresponding directly with the applicant (and copying such correspondence to his solicitor), was acting in breach of s.7 of the Act of 2003.

53 27. The High Court

54 The High Court held that PIAB had not succeeded in demonstrating how its interference with the lawyer/client relationship was necessary, expedient or incidental to its functions.

55 28. The learned High Court judge referred to several significant features of the case to which he had regard, being:

• "(a) the fact that the matters in issue before [PIAB] are truly ones of substance. They relate to the applicant's property right in his cause of action in tort. They are...