Campbell v O'Donnell and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 07 May 2008
• Neutral Citation: [2008] IESC 32
• Docket Number: [S.C. No. 335 of
• Court: Supreme Court
• Date: 07 May 2008

[2008] IESC 32

THE SUPREME COURT

Hardiman J.

Geoghegan J.

Kearns J.

[Record No. 1057P/2005]

Campbell v O'Donnell & Ors

BETWEEN

MICHAEL CAMPBELL

PLAINTIFF/APPELLANT

AND

PADRAIG O'DONNELL, GAVIN BOYLE & THE MOTOR INSURERS BUREAU OF IRELAND

DEFENDANTS

AND

THE MINISTER FOR TRANSPORT

NOTICE PARTY

ROAD TRAFFIC ACT 1961 S118

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S3(b)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S4(1)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S3(d)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S3

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S12(1)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S4

CIVIL LIABILITY ACT 1961

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S4(2)

MOTOR INSURERS BUREAU OF IRELAND (MIBI) AGREEMENT 1988 CLAUSE 2

MOTOR INSURERS BUREAU OF IRELAND (MIBI) AGREEMENT 1988 CLAUSE 4(1)

MOTOR INSURERS BUREAU OF IRELAND (MIBI) AGREEMENT 1988 CLAUSE 4(3)

MOTOR INSURERS BUREAU OF IRELAND (MIBI) AGREEMENT 1988 CLAUSE 6

MOTOR INSURERS BUREAU OF IRELAND (MIBI) AGREEMENT 2004

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S4(1)(i)

PATERSON v CHADWICK 1974 2 AER 772

TRUSTEES EXECUTORS & AGENCY CO LTD v REILLY 1941 VLR 110

Abstract:

Tort law - Personal Injuries -PIAB - Traffic accident - Vicarious liability - MIBI -Uninsured - Civil action - Exclusion in s. 4 Personal Injuries Assessment Board Act 2003 - Whether plaintiff should have made claim to PIAB

Facts: The plaintiff suffered personal injures in a road traffic accident and sought to have the first named defendant held vicariously liable for the negligence of the second defendant. The vehicle was uninsured. The plaintiff sought to recover judgment against the MIBI if the judgment was unsatisfied and alleged that the exception in s. 4 of the Act of 2003 applied. The defendants alleged that the proceedings were misconceived and an application should have been made to the Personal Injuries Assessment Board.

Held by the Supreme Court per Kearns J (Hardiman, Geoghegan JJ. concurring), that the action of the plaintiff was misconceived. The cause of action against the Bureau was the same as the uninsured defendants. The action did not fall within the exception to s. 4. The appeal would be dismissed.

Reporter: E.F.

1 Mr. Justice Kearns delivered the 7th day of May, 2008

2 These proceedings arise out of a motor accident which occurred on 31 ^st July, 2002 when the plaintiff suffered personal injuries while travelling in a motor car which was struck by another motor car, the property of the first named defendant, which was driven on the occasion in question by the second named defendant. The plaintiff alleges that the second named defendant drove to the incorrect side of the road resulting in a head-on collision between the respective vehicles. The plaintiff seeks to have the first named defendant held vicariously liable for the negligence of the second named defendant pursuant to the provisions of s.118 of the Road Traffic Act, 1961. It is not in dispute that the plaintiff's cause of action as against the first and second named defendants comes within the meaning of s.3(b) and s.4(1) of the Personal Injuries Assessment Board Act, 2003 ( "the PIAB Act"), that is to say that it is a civil action pursued against those defendants for the recovery of damages for personal injuries in respect of a wrong and, as such, is subject to the procedures laid down in the Act of 2003, including assessment of damages by the Board established by that Act.

3 It is common case that the vehicle driven by the second named defendant was not covered at the time of the accident by an approved policy of insurance as required by the Road Traffic Act Code. In consequence the plaintiff also sued the Motor Insurers Bureau of Ireland ( "M.I.B.I.") pursuant to the provisions of an Agreement dated 21st December, 1988 between the Minister for the Environment on the one part and the M.I.B.I. of the other part. Against this defendant the plaintiff seeks a declaration that in the event of any judgment obtained by the plaintiff against the first and/or second named defendant remaining unsatisfied twenty-eight days after the same shall have been given, the plaintiff shall in those circumstances be entitled to recover the amount of such judgment against the third named defendant pursuant to the terms of the said agreement.

4 By defence delivered the 15 ^th June, 2005 on behalf of the third named defendant, the third defendant raised a preliminary point of objection, namely, that the plaintiff was not entitled to issue proceedings against it without reference to the Personal Injuries Assessment Board. The third named defendant contends that as the plaintiff's claim against the first and second named defendants is a civil action within the meaning of s.3 (b) of the PIAB Act or is otherwise an action coming within the meaning of s.3(d) of the said Act that the plaintiff's claim in the first instance should and must be made to the Personal Injuries Assessment Board and that accordingly the proceedings herein are misconceived and invalid.

5 The PIAB Act of 2003 is described in its long title as:-

"An Act to enable, in certain situations, the making of assessments, without the need for legal proceedings to be brought in that behalf, of compensation for personal injuries (or both such injuries and property damage), in those situations to prohibit, in the interests of the common good, the bringing of legal proceedings unless any of the parties concerned decides not to accept the particular assessment or certain other circumstances apply, to provide for the enforcement of such an assessment, for those purposes to establish a body to be known as the Personal Injuries Assessment Board and to define its functions and to provide for related matters".

6 Section 3 of the Act provides:-

"This Act applies to the following civil actions-"

(a) a civil action by an employee against his or her employer for negligence or breach of duty arising in the course of the employee's employment with that employer,

(b) a civil action by a person against another arising out of that other's ownership, driving or use of a mechanically propelled vehicle,

(c) a civil action by a person against another arising out of that other's use or occupation of land or any structure or building,

(d) a civil action not falling within any of the preceding paragraphs (other than one arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person)."

7 Section 12(1) of the PIAB Act provides, inter alia:-

"Unless and until an application is made to the Board under section 11 in relation to the relevant claim and then only when the bringing of those proceedings is authorised under section 14, 17, 32 or 36, rules under section 46(3) or section 49 and subject to those sections or rules, no proceedings may be brought in respect of that claim."

8 Section 4 of the PIAB Act provides, inter alia, that:-

9 " "civil action" means an action intended to be pursued for the purpose of recovering damages, in respect of a wrong, for-"

10 (a) personal injuries, or

11 (b) both such injuries and damage to property (but only if both have been caused by the same wrong),

12 but does not include-

13 (i) an action intended to be pursued in which, in addition to damages for the foregoing matters, it is bona fide intended, and not for the purpose of circumventing the operation of section 3, to claim damages or other relief in respect of any other cause of action,

14 (ii) an application for compensation intended to be made under the Garda Síochána (Compensation) Acts 1941 and 1945,

15 (iii) an action intended to be pursued in respect of an alleged breach by the State or any other person of a provision of the Constitution,

16 (iv) an action intended to be pursued under section 3 of the European Convention on Human Rights Act 2003."

17 Section 4(1) also provides that" personal injury" has the same meaning as it has in the Civil Liability Act, 1961, " proceedings" means proceedings in court," wrong" has the same meaning as it has in the Civil Liability Act, 1961; " claimant" is a person who would be entitled to pursue a civil action to which the PIAB Act applies and includes:-

18 a " (a) a personal representative in whom a cause of action comprising a civil action is vested by virtue of the Act of 1961,

19 (b) a person specified in subsection (3) of section 48 of the Act of 1961 who would, subject to this Act, be entitled to pursue an action for damages under that section,

20 (c) a person who would be entitled to act as a next friend of a minor or a person of unsound mind were a civil action to which this Act applies to be pursued on his or her behalf,

21 (d) the committee of a person of unsound mind acting on his or her behalf in relation to a civil action to which this Act applies that is proposed to be pursued."

22 Section 4(2) of the PIAB Act provides:-

23 "For the purposes of the definition of "civil action" in subsection"

24 (1) "action"-

25 (a) includes an action the cause of action comprising which accrued before the passing of this Act, and

26 (b) shall be deemed to include an action intended to be pursued for damages under section 48 of the Act of 1961."

THE MOTOR INSURERS BUREAU AGREEMENT

27 It is common case that the plaintiff's claim against the third named defendant is governed by the terms of the 1988 Motor Insurers Bureau Agreement ("The 1988 Agreement"), the accident having occurred on the 31 ^st July, 2002.

28 Clause 2 of the 1988 Agreement provides:-

"M.I.B. of 1. hereby agrees that a person claiming compensation (hereinafter...