O'Brien v Personal Injuries Assessment Board & AG (Costs)

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 25 January 2005
• Neutral Citation: [2005] IEHC 100
• Date: 25 January 2005
• Court: High Court
• Docket Number: [2004 No. 785 JR]

[2005] IEHC 100

THE HIGH COURT

Record No. 785JR/2004

O'BRIEN v PERSONAL INJURIES ASSESSMENT BOARD (PIAB)

BETWEEN

DECLAN O'BRIEN

APPLICANT

AND

THE PERSONAL INJURIES ASSESSMENT BOARD

RESPONDENT

AND

IRELAND AND THE ATTORNEY GENERAL

NOTICE PARTIES

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003

STATUTE OF LIMITATIONS

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S7

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6.1

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S29

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S44

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S54

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S53

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S11

PERSONAL INJURIES ASSESSMENT BOARD RULES 2004 SI 219/2004

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S44(3)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S46

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S55

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S79

PERSONAL INJURIES ASSESSMENT BOARD RULES 2004 RULE 5

MURPHY v GREENE 1990 2 IR 566 1991 ILRM 404 1991 ILT 146

S (A) (ORSE B (A)) v B (R) 2002 2 IR 428

GOLDER v UK (1979-1980) 1 EHRR 524

CONSTITUTION ART 15.2.1

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S7(2)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S21(1)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S51

HAUGHEY, IN RE 1971 IR 217

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S29(1)

CONSTITUTION ART 34

MAGUIRE & ORS v ARDAGH & ORS (OIREACHTAS JOINT COMMITTEE ON JUSTICE) [ABBEYLARA CASE] 2002 1 IR 385

CAHILL v SUTTON 1980 IR 269

AIREY v IRELAND 1979-80 2 EHRR 305

NEUMEISTER v AUSTRIA (1979-1980) 1 EHRR 91

ANDERSON v THE BANK OF BRITISH COLUMBIA 1876 2 CH D 644

SMURFIT PARIBAS BANK LTD v AAB EXPORT FINANCE LTD 1990 1 IR 473 1990 ILRM 588

SOLOTOSKY v CANADA 1980 1 SCR 821

SMITH v JONES 1999 1 SCR 455

MILEY v FLOOD (PLANNING TRIBUNAL) & LAW SOCIETY OF IRELAND 2001 2 IR 50 2001 1 ILRM 489

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S46(1)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S23

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S24

CIVIL LIABILITY ACTS 1961-1996

DUNNE & NATIONAL ASSOCIATION OF REGIONAL GAME COUNCILS & ANOR v DONOHOE (GARDA SUPERINTENDENT) & ORS 2002 2 IR 533 2002 2 ILRM 200

CONSTITUTION ART 38.1CONSTITUTION ART 38

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S54(2)

HOWARD v COMMISSIONERS OF PUBLIC WORKS 1994 1 IR 101

AG v EASTERN RAILWAY CO 1885 AC 473

KEANE & NAUGHTON v BORD PLEANALA & COMMISSIONERS OF IRISH LIGHTS 1997 1 IR 184

KIELY v MIN FOR SOCIAL WELFARE 1977 IR 267

COMMISSION TO INQUIRE INTO CHILD ABUSE, IN RE 2002 3 IR 459

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S20(a)(1)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S12(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S47

HEALY, STATE v DONOGHUE 1976 IR 325

POWELL v ALABAMA 1932 287 US 45

MOSLEY & ORS v ST LOUIS SOUTH WESTERN RAILWAY 1981 634 F 2D 942

PERSONAL INJURIES

Practice and procedure

Personal Injury Assessment Board - Right to legal representation - Confirmation and authority - Client/solicitor relationship - Locus standi - Whether applicant had sufficient locus standi to maintain proceedings - Whether refusal by respondent to deal directly with solicitor ultra vires - Whether procedure adopted by respondent was necessary, expedient or incidental to its functions - Personal Injuries Assessment Board Act 2003 (No 46), ss 7, 29, 53, 54 - Declarations in favour of plaintiff granted (2004/785JR - MacMenamin J - 25/5/2005) [2005] IEHC 100

O'Brien v PIAB

The matter came before the court in order to determine the form of an order relating to a judgment of the court in judicial review proceedings that the first named respondent acted ultra vires the provisions of the 2003 Act in refusing to deal directly with the applicant's solicitor in a claim for damages for personal injuries before the board. There was also an issue concerning the costs of the proceedings.

Held by MacMenamin J:

1. That the declaration to be encompassed in the judgment would be to the effect that the respondent in declining to accept or act upon the authorisation furnished to it by the solicitor for the applicant, and in dealing directly with the applicant acted in breach of s.7 of the 2003 Act or without authority under any other provision of the Act.

2. That the applicant was entitled to the costs of the application for leave and of the substantive hearing. Further the applicant would have the costs of taking judgment on 25/01/2005. However, each of the parties would have to bear their own costs in relation to the interlocutory applications.

Reporter: L.O'S.

1 JUDGMENT of Mr. Justice John MacMenamin dated the 25th day of January, 2005

2 The applicant in these proceedings lives at Esker Meadow, Tullamore Co. Offaly. He is a single man. His date of birth is 8th September 1972.

3 At the times material to the proceedings he was employed at the premises of Galtee Meats, Clara Road, Kilbeggan, Co. Westmeath as a boner in a meat factory, and was working on a sub-contract to a company known as Ard Meats Limited. His job involved boning carcasses of beef at a table.

4 While in the course of this employment the applicant alleges that an accident befell him on 5th November 2001. He claims that an overhead line which was carrying carcasses of meat collapsed as a result of which he was struck on the back and sustained injuries.

5 He was taken to Tullamore Hospital where he was x-rayed and had a bone scan. As a result he was certified "off work" for a period of approximately four months. It is contended that he had a gradual return to work with periods off work when his back pain became acute.

6 The applicant returned to work in or about February 2002. He contends that he gradually became aware that although working full-time, he was able to produce only about 75% of his previous output. His earnings suffered proportionately. He asserts he has not been able to return to his previous level of productivity. He is apprehensive that he will not be able to do so. He claims that he suffers pain and aches at the end of a days work.

7 The applicant did not initiate proceedings immediately after the alleged accident. It was only on 12th August 2004 that he travelled from Tullamore to a solicitor's office in Newbridge, County Kildare. He instructed his solicitor, Mr. Denis Boland of P.V. Boland and Company. He told him the circumstances of the accident and gave a summary of the circumstances.

8 The applicant was informed by Mr. Boland that, because of the coming into operation of the Personal Injuries Assessment Board Act 2003 (hereinafter "the Act"), his claim would have to be initiated by making an application to the Personal Injuries Assessment Board (hereinafter "the Board"). This is because the Act provides that a potential claimant is prohibited from initiating civil proceedings in pursuit of damages for injuries without having first made application to the Board.

9 Of more immediate concern was the Statute of Limitations. The three-year time limitation was looming large as a consideration. It would have run its course in approximately eleven weeks from the date on which Mr. Boland first met his client, that is 4th November 2004. The accident, it will be remembered, is alleged to have occurred on 5th November 2001.

10 Mr. Boland arranged for his client to visit him again in his offices on 16th August. By that time he hoped to be in a position to advise him further, and to identify the manner in which proceedings should be initiated. The solicitor had in mind the steps necessary to assemble a claim for personal injuries. These include obtaining a medical report; corresponding with the applicant's employers and the owners of the factory in which he was working; identifying loss of earnings; corresponding with the orthopaedic surgeon who had treated him; and generally assembling the data necessary to process the claim.

11 Mr. Boland also wished to contact the Board to inform them of the claim and to put them on notice of its pending arrival, and also to advise them of his concern in relation to the Statute of Limitations which was at that time a primary concern.

12 Prior to the coming into operation of the Act in May 2004, the applicant's solicitor would have been able to protect his position vis-à-vis the three-year time limit simply by issuing a plenary summons in the High Court.

13 Mr. Boland in his affidavit states that on 16th August 2004, he telephoned and had a conversation with a Ms. Jo Crowley who works in a call centre. This call centre, run by a company named S.M.S. Business Process Outsourcing Limited, acts as an agent to which the Board outsources the business of processing claims.

14 Mr. Boland states that in the course of his conversation with Ms. Crowley he gave her particulars of the claim. He expressed concern regarding the Statute of Limitations. He gave an outline of the claim as the client had presented it to him. He indicated that he would be sending an authority to the Board on behalf of his client. This would require the Board to deal directly with him as the applicant's solicitor.

15 The applicant states he would not have the facilities necessary for the initiation and preparation of a legal claim of this type. He has neither office, nor typing, nor secretarial, facilities.

16 Mr. Boland states that Ms. Crowley asked to be given the applicant's telephone number. As it transpired the conversation was being recorded, and such recording was kept and preserved by the Personal Injuries Assessment Board.

17 Within three hours of the conversation Ms. Crowley had contacted the applicant personally on his mobile telephone. The applicant was at the time at the side of the street. He spoke with Ms....