O'Brien v Personal Injuries Assessment Board (No. 2)

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Murray C.J.
• Judgment Date: 16 November 2006
• Neutral Citation: [2006] IESC 62
• Date: 16 November 2006
• Docket Number: [S.C. No.

O'BRIEN v PERSONAL INJURIES ASSESSMENT BOARD (PIAB)

Between

DECLAN O'BRIEN

Applicant / RESPONDENT

-v-

THE PERSONAL INJURIES ASSESSMENT BOARD

APPELLANT / RESPONDENT

[2006] IESC 62

Murray C.J.

Denham J.

Fennelly J.

169/05

THE SUPREME COURT

- 2007 1 ILRM 304

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S7

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S11

STATUTE OF LIMITATIONS ACT 1957

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S17(6)

TRIBE AMERICAN CONSTITUTIONAL LAW 3ED 2000

BOROWSKI v AG OF CANADA 1989 1 SCR 342

CITY OF MESQUITE v ALADDIN'S CASTLE 455 US 283

CONSTITUTION ART 34.4

CLARKE v MEMBER IN CHARGE OF TERENURE GARDA STATION 2001 4 IR 171 2002 2 ILRM 11

ZWANN, IN RE 1981 IR 395

CONSTITUTION ART 40

1 JUDGMENT (ex-tempore) delivered on the 16th day of November, 2006 by Murray C.J.

2 The application before this Court concerns the appeal brought by the above named appellant / respondent, the Personal Injuries Assessment Board, (hereafter "the respondent") against an Order of the High Court obtained by the above named applicant / respondent, Mr. O'Brien, (hereafter "the applicant").

3 The applicant having been successful in the proceedings which he brought before the High Court was granted a declaration on the following terms:

"The Court doth declare that the respondent in declining to accept or act upon the authorisation dated 16th of August, 2004 (described as "a confirmation 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, 2003or without any authority under any other provision of the Act."

4 The Declaration in the High Court Order is grounded upon the conclusion of the learned High Court Judge that the respondent acted unlawfully in the exercise of their statutory powers by refusing to deal with the applicant's duly appointed solicitor in connection with his claim for damages for personal injuries.

5 In addition the High Court ordered that the applicant should recover costs from the respondent in respect of the application for leave to bring judicial review, the costs of a substantive hearing of three days and the costs of taking judgment.

6 The present application before the Court, brought by the applicant, is by way of a motion seeking the directions of the Court as to the status of the appeal, the future participation of the applicant at any hearing of the appeal and other ancillary matters.

7 The Law Society of Ireland had participated in the High Court proceedings as amicus curiae by order of the High Court. The status of the Law Society in this appeal has not been determined but counsel for the Law Society was permitted, de bene esse, to address the Court on the matters arising in relation to this application pending any determination of its status in a substantive appeal. In this regard I am of the view that where a party seeks to be accorded the status of amicus curiae in an appeal pending before this Court, whether or not it has had that status at the hearing in first instance, should be the subject of an application to this Court on notice to the parties to the appeal. It will then be a matter for this Court to determine on the hearing of the application whether the party concerned should be accorded the status of amicus curiae.

8 The circumstances giving rise for the present application are as follows:

9 In August 2004 the applicant instructed his solicitors to institute proceedings against his employer arising from an injury which he had suffered in his workplace on 5th November, 2001. On August 16th the applicant signed an authority retaining his solicitors as his agent to deal exclusively with the matter on his behalf. By virtue of s. 11 of the Personal Injuries Assessment Board Act, 2003the applicant was obliged, if he wished to institute a civil claim for personal injuries, to apply to the respondent in order that an assessment might be made in respect of his case. This was also necessary in order to prevent time running against his claim pursuant to the provisions of the Statute of Limitations Act, 1957, as amended. Accordingly on 16th August, 2004 his solicitor wrote to the respondent and enclosed a completed application form and the appropriate fee of €50.00. This was accompanied by the authority which the applicant had signed. From the applicant's point of view it was important that his application to the Board be deemed to have been duly submitted pursuant to s. 11 of the Act since the claim was liable to become statute barred as and from 5th November, 2004. The respondent declined to treat the application as a valid application pursuant to s. 11 of the Act unless and until it received a medical report from the applicant.

10 In the light of the position adopted by the respondent the applicant instituted these proceedings challenging the legality of firstly, the respondents" refusal to register the applicant's claim and secondly its refusal to abide by the authority signed by the applicant on 16th August, 2004 and to deal directly with his solicitor as his duly appointed agent. In the event the applicant's solicitor furnished to the respondent a medical report on 22nd October, 2004 and the issue concerning the requirement to provide a medical report with the application pursuant to s. 11 was not pursued further.

11 Judgment was given in favour of the applicant on 25th January, 2005and an Order made on 11th March, 2005, perfected 14th April, 2005, in which the High Court made the Declaration and awarded the costs referred to above. A notice of appeal was filed on 28th April, 2005 by the respondent and a notice of cross-appeal by the applicant on 3rd May, 2005. The appeal was certified as ready for hearing by the respondent on 23rd November, 2005.

12 On 26th January, 2006 the applicant received an authorisation from the respondent pursuant to s. 17(6) of the Act to institute court proceedings in respect of his claim for personal injuries against his employer. These proceedings were commenced. It is common case that as a consequence of such authorisation and the initiation of proceedings that the applicant is no longer obliged to deal with the respondent.

13 Accordingly, counsel for the applicant submits that because the applicant's claim now falls outside the PIAB system, so to speak, and there is neither a need nor an obligation to communicate with the respondent the question of the...