Campbell v O Donnell and Others

• Jurisdiction: Ireland
• Judge: Finnegan P.
• Judgment Date: 26 July 2005
• Neutral Citation: [2005] IEHC 266
• Court: High Court
• Docket Number: RECORD NO. 2005/1057P
• Date: 26 July 2005

[2005] IEHC 266

THE HIGH COURT

RECORD NO. 2005/1057P

CAMPBELL v O'DONNELL & ORS

BETWEEN

MICHAEL CAMPBELL

PLAINTIFF

AND

PADRAIG O'DONNELL

AND

GAVIN BOYLE

AND

THE MOTOR INSURERS BUREAU OF IRELAND

DEFENDANTS

CIVIL LIABILITY ACT 1961 S4

CIVIL LIABILITY ACT 1961 S2

CIVIL LIABILITY ACT 1961 S10

CIVIL LIABILITY ACT 1961 PART II

ROAD TRAFFIC ACT 1961 S78

ROAD TRAFFIC ACT 1961 S76

HARDY v MOTOR INSURERS BUREAU 1964 2 AER 742

FIRE AUTO & MARINE INSURANCE CO LTD v GREENE 1964 2 AER 761

BOWES & HART v MOTOR INSURERS BUREAU OF IRELAND (MIBI) 2000 2 IR 79

CIVIL LIABILITY & COURTS ACT 2004

BUTTERWORTHS WORDS & PHRASES LEGALLY DEFINED 3ED 1988 "IN RESPECT OF"

TRUSTEES EXECUTORS & AGENCY CO LTD v REILLY 1941 VLR 110

PATERSON v CHADWICK 1974 2 AER 772

R (GEOLOGISTICS LTD) v FINANCIAL SERVICES COMPANSATION SCHEME 2003 EWHC 629

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S3(d)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S3(a)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S3(b)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S3(c)

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

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

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

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

GARDA SIOCHANA (COMPENSATION) ACT 1941

GARDA SIOCHANA (COMPENSATION) ACT 1945

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

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

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

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

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

MOTOR INSURERS BUREAU OF IRELAND (MIBI) AGREEMENT 1988 CLAUSE 7

HEGARTY v O'LOUGHRAN 1990 1 IR 148

READ v BROWNE 1888 22 QBD 128

COOKE v GILL LR 8 CP 107

CHANCERY (AMDT) ACT (LORD CAIRNS ACT) (21 & 22 VICT C27)

GRANT v DAWKINS & ORS 1973 3 AER 897

KEATING & ORS v BANK OF IRELAND 1983 ILRM 295

WARD v HOLMAN 1964 2 AER 729

R v GALVIN 1987 2 AER 851

STEPHENS v CUCKFIELD RDC 1962 AER 716

HALSBURYS LAWS OF ENGLAND 3ED VOL 1 PARA 9

ROAD TRAFFIC ACT 1961 S71

PRACTICE AND PROCEDURE

Jurisdiction

Personal injuries - Personal Injury Assessment Board - Motor Insurers' Bureau of Ireland - Road traffic accident - Accident caused by uninsured driver - Whether proceedings could be issued against Bureau without reference to PIAB - Whether action against Bureau falls within definition of civil action - Whether regard can be had to consequences in construing statute if statute ambiguous - Personal Injury Assessment Board Act 2003 (No 20), s. 4 (2005/1057P - Finnegan P - 26/7/2005) [2005] IEHC 266 -Campbell v O'Donnell

Facts: The plaintiff instituted proceedings claiming damages for personal injuries suffered by him due to the negligence of the first and second named defendants arising out of a road traffic accident. In its defence the third named defendant pleaded that the plaintiff was not entitled to issue proceedings without reference to the Personal Injuries Assessment Board (PIAB) and accordingly these proceedings were misconceived and ought to be dismissed. The plaintiff contended that the action the subject matter of the proceedings was not a civil action within the meaning of section 4 of the Act of 2003 or alternatively if it was such an action it came within the exclusion contained in section 4(i).

Held by Finnegan P. in dismissing the proceedings:

1. That the action against the third named defendant while not an action for damages, it was an action to recover damages and in respect of damages and accordingly was a civil action within the meaning of section 4 of the Act of 2003 and came under the provisions of section 3(d) of that Act.

2. That the cause of action against the third named defendant was the same as against the first and second named defendants and the intention of joining the third named defendant was to recover damages for negligence awarded against the uninsured first and second named defendants. Accordingly the action did not come within the exception provided for in section 4(l)(i).

Reporter: L. 0'S.

Finnegan P.

The Proceedings

1 This claim arises out of a road traffic accident which occurred on the 31st July 2002 when the Plaintiff was travelling in a motor car which was struck by another motor car the property of the first named Defendant and driven by the second named Defendant. The Plaintiff claims that the collision occurred as a result of the negligence of the first named Defendant and the second named Defendant whose vehicle was not insured. In these circumstances the Motor Insurers Bureau of Ireland is named as a third Defendant. In its defence the third named Defendant raises the following plea -

"The Plaintiff is not entitled to issue proceedings without reference to the Personal Injuries Assessment Board and accordingly these proceedings are misconceived and ought to be dismissed."

The Personal Injuries Assessment Board Act 2003 .

The long Title to the Act reads as follows û

2 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.

3 The Act applies to certain civil actions. Civil action is defined in section 4 of the Act -

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

(a) personal injuries, or

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

but does not includeù

6 (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 ofsection 3, to claim damages or other relief in respect of any other cause of action,

7 (ii) an application for compensation intended to be made under the Garda Síochána (Compensation) Acts1941 and 1945,

8 (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,

9 (iv) an action intended to be pursued under section 3 of the European Convention on Human Rights Act2003."

10 Section 3 of the Act sets out those civil actions to which the Act applies û

"3.ùThis Act applies to the following civil actionsù

(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)."

11 Part II of the Act prohibits the bringing of proceedings in respect of a civil action to which the Act applies unless conditions specified in that Part are satisfied. Principally under section 10 a claimant must first make an application under that Part to the Personal Injuries Assessment Board for an assessment. Where the Board makes an assessment which is or is deemed to be accepted the Board will issue an order to pay.

"40.ù(1) As betweenù

(a) the claimant and the respondent or respondents, and

(b) 2 or more respondents,

an order to pay shall, without prejudice to the other provisions of this Chapter, operate as if it were a judgment of a court given for the amount or amounts concerned."

The Act provides in section 40(1) as follows û

12 One effect of this provision is that the Road Traffic Act1961 section 76 applies to an order to pay consequent upon an assessment by the Personal Injuries Assessment Board.

13 The Act in section 4 provides that "wrong" has the same meaning as it has in the Civil Liability Act1961. The Civil Liability Act 1961 section 2 defines "wrong" û

""Wrong" means a tort, breach of contract or breach of trust, whether the act is committed by the person to whom the wrong is attributed or by one for whose acts he is responsible, and whether or not the act is also a crime, and whether or not the wrong is intentional."

14 The Act in section 10 prohibits the bringing of proceedings in respect of a relevant claim unless the conditions specified in Part II of the Act are satisfied: principally an application must first be made to the Board and the proceedings authorised by the Board. Proceedings are defined in section 4 of the Act û

15 ""proceedings" means proceedings in Court".

The Motor Insurers Bureau of Ireland

16 While the Motor Insurers Bureau of Ireland is not mentioned in the 2003 Act the Road Traffic Act1961 section 78 provides as follows û

17 78.ù(1) A person shall not carry on mechanically propelled vehicle insurance business within the meaning of section 3 of the Insurance Act, 1936, unlessù

(a) he is a member of the Bureau, or

18 (b) there is in force an undertaking by him in terms approved of by the Minister that he will deal with third party claims in respect of mechanically propelled vehicles insured by...