Clarke v O'Gorman

JudgeO'Donnell J.
Judgment Date30 July 2014
Neutral Citation[2014] IESC 72
CourtSupreme Court
Docket Number[S.C. No. 347 of 2011]
Date30 July 2014
Clarke v O'Gorman



[2014] IESC 72

Hardiman J.

O'Donnell J.

Clarke J.

MacMenamin J.

Dunne J.

Appeal No: 347/11


Tort – Personal Injury Claim – Jurisdiction – Personal Injuries Assessment Board Act 2003,s.3,11 – Authorization by Board – Appeal – Procedure – Damages

This was a civil case involving personal injury allegedly suffered by the plaintiff/appellant. The plaintiff/appellant alleged that she was sexually abused by the defendant, her brother, when she was a child and he an adolescent and sought damages for assault and sexual assault, damages for battery, damages for trespass to the personal damages for breach of Constitutional Rights. The Defendant/Respondent denied these allegations and the plaintiff case was dismissed in High Court on the grounds of lack of jurisdiction. On appeal the issue came before Hardiman J., O'Donnell Donal J., Clarke J., MacMenamin J., Dunne J. in the Supreme Court.

The Supreme Court carefully analyzed the decision making process adopted by the trial judge and determined the correctness of the decision to dismiss the plaintiffs claim. At trial the defendant argued that the plaintiff"s actions be struck out on the grounds that the matter was a civil action within the meaning of s.3 of the Personal Injuries Assessment Board Act 2003 and that the plaintiff had not complied with s.11 of that Act in that the matter had not been referred to the Board and the proceedings were not duly authorized by the Board. The defendant relied upon the case Sherry v. Primark [2010] 1 I.R. 407 in support of the submission that the court had no jurisdiction to hear the plaintiff"s action. The trial judge as aforementioned had accepted the defendant"s argument that the proceedings should be struck out for want of jurisdiction. The Supreme Court however decided that the High Court had full and original jurisdiction to determine all questions of fact and law. Additionally the Supreme Court declared that the defendant"s claim of lack of authorization under the Act had not been raised by the defendant at any time during the process of pleading and since it was not a jurisdictional matter it could only be raised if it was pleaded and therefore relevant to the issues between the parties. The Supreme Court stated that there was therefore no basis to hear the application brought by the defendant and no basis for the dismissal of the proceedings. The Supreme Court concluded that the trial judge here was wrong to dismiss the plaintiff"s claim and allowed the appeal to set aside the Order of the High Court.

Appeal allowed


Judgment delivered on the 30th of July, 2014, by O'Donnell J.


Judgment delivered by O'Donnell J [Nem diss]


1 Personal injuries cases, in the shape of claims for damages occasioned by accidents at work and increasingly, road traffic accidents, have been the staple diet of civil courts at all levels in Ireland for a century or more. Personal injury litigation is almost the standard unit of civil claims by reference to which other proceedings tend to be compared, measured and analysed. For the most part the law relating to such litigation is well understood and not particularly controversial. The vast majority of cases turn not on any analysis of the law, but on an assessment of contested facts, and the inferences to be drawn from them. It is rather surprising therefore, that the statute law relating to the procedure governing the initiation and processing of this litigation is complex, confusing and poorly aligned.


2 The Personal Injuries Assessment Board Act 2003 ("the 2003 Act" or "the Act") was introduced to reduce the burden of costs upon insurers in the belief that this would substantially reduce insurance premiums for businesses and motorists and occupiers of premises. Before addressing the details of the Act and its operation in this case, it is perhaps useful to consider its essential architecture particularly in a constitutional context. The basis upon which the Act appears to operate is an assumption that many claims for personal injuries do not involve, or at least should not involve, a serious contest on the issue of liability, and will therefore result in an award to the plaintiff. Furthermore, the range of variables in the assessment of damages for personal injury is not extensive: there are only so many injuries which a human being can suffer as a result of physical accidents which may unfortunately befall them. Most personal injuries actions involve a variation on injuries involving fractures of limbs, loss of limbs or organs, whiplash type injuries, muscular skeletal strains, disfigurement by scarring, and consequential psychological trauma, medical expenses and loss of earnings. Given the high volume of accidents and consequent claims, and the experience developed in dealing with them, it is considered possible to construct a reasonably accurate table of valuations allowing for variation in individual cases and for the severity of injuries. The underlying theory of the Act is that the machinery of civil litigation with its process of ambitious claims met by unrealistic denials each supported by expert evidence and advanced by legal teams, is an unnecessarily costly way of getting to a predictable end point. If however, it were possible to have the valuation of the injuries independently assessed, then that figure could be proffered to both defendant and plaintiff and if the defendant was willing to offer it and the plaintiff to accept, the plaintiff might receive the damages to which they were entitled at an early stage and without the inevitable delay, stress and trauma of court proceedings, and the defendant might be able to pay such damages without incurring all of the costs of defence of the litigation, and the obligation to pay the costs of the successful plaintiff.


3 Whether this is a wise or effective approach in practice, whether it is particularly fair or entirely balanced particularly as far as plaintiffs are concerned, and whether it has secured all the benefits it sought to achieve, are not questions which arise in this case. Indeed some of these issues may not be a matter for legal resolution. What is important for present purposes is that the Act is structured as providing a service for litigants which may remove the necessity for litigation. It is not an abolition of the right to sue for damages for personal injuries.


4 The structure of the Act in this regard in reasonably clear. It does not seek to remove claims for personal injuries from the court system in favour of any compulsory system of arbitration or administrative determination. Indeed, given the provisions of Article 34.2 of the Constitution on the full and original jurisdiction of the High Court, and the concept of the administration of justice contemplated under Article 34.1, it may have been considered that such a compulsory scheme might be problematic. Whether such an assumption was made, and if so, whether it is correct, are not issues that need detain us. The fact is that for whatever reason, the Act leaves firmly alone the entitlement of parties to litigate claims in the courts established under the Constitution. Instead, what it seeks to do is to encourage an early settlement of the bulk of straightforward claims in a manner which minimises the legal and other costs associated with litigation. It seeks to achieve this objective by providing an independent assessment on the value of the claim but also seeking to ensure that parties, and in particular the plaintiffs, consider any offer which is made pursuant to the Personal Injuries Assessment Board ("PIAB" or "the Board") procedure by compelling plaintiffs in the designated class of cases to submit their claims for assessment before commencing litigation (s.12), and also by for providing for potential cost penalties (s.51 A inserted by s.1 of the Personal Injuries Assessment Board (Amendment) Act 2007) if having refused an offer, a plaintiff litigates and recovers less than the amount assessed through PIAB and offered by a defendant.


5 Analysed in constitutional terms, the Act does not seek to achieve its object by any subtraction from the jurisdiction of the courts under Article 34; it is instead a limitation on the unspecified personal right of access to the courts to litigate those claims guaranteed by Article 40.3. A PIAB authorisation is perhaps the most well known, but by no means the only circumstance, in which a party must seek some form of permission or authorisation before commencing a claim. This case does not raise any question of compatibility of this scheme with any provision of the Constitution, but this analysis may be helpful in considering the issues which arise in this case. These proceedings requires the court to consider two aspects of the scheme: what claims are captured by the 2003 Act machinery; and, assuming a claim is indeed a personal injuries claim covered by the Act, what is the correct legal analysis when proceedings in principle captured by the Act are commenced without being processed through PIAB?


6 The plaintiff in this case alleges that she was sexually abused by the defendant, her brother, when she was a child and he an adolescent. The proceedings contain a graphic and detailed description of the abuse alleged. The defendant denies these allegations. Is such a claim captured by the Act, and the procedures it mandates? In fairness to the plaintiff and her advisors, it should be said that the thrust of the PIAB legislation is widely understood to deal with standard claims arising most often in the context of road traffic accidents, accidents at work, or accidents occurring on premises. What each of these cases has in...

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