Cunningham v North Eastern Health Board & Monaghan County Council

JurisdictionIreland
JudgeMr. Justice Hedigan
Judgment Date15 May 2012
Neutral Citation[2012] IEHC 190
CourtHigh Court
Date15 May 2012

[2012] IEHC 190

THE HIGH COURT

[No. 2102 P/2004]
Cunningham v North Eastern Health Board & Monaghan Co Council
JUDICIAL REVIEW

Between:

AIDAN CUNNINGHAM
PLAINTIFF
V.
NORTH EASTERN HEALTH BOARD AND BY ORDER MONAGHAN COUNTY COUNCIL
DEFENDANT

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S11

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S4

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S3

CIVIL LIABILITY & COURTS ACT 2004 S2

RSC O.15 r13

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S12(1)

SHERRY v PRIMARK LTD T/A PENNEYS & GROSVENOR CLEANING SERVICES LTD 2010 1 IR 407 2010 2 ILRM 198 2010/47/11796 2010 IEHC 66

ALLIED IRISH COAL SUPPLIES LTD v POWELL DUFFRYN INTERNATIONAL FUELS LTD 1998 2 IR 519

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

1

Judgment of Mr. Justice Hedigan delivered the 15th of May 2012

2

1. The second defendant Monaghan County Council seek the following relief's:-

3

(1) An order striking out the plaintiff's claim against Monaghan County Council for failure on the part of the plaintiff to first seek an authorization from the Personal Injury Assessment Board pursuant to Section 11 of the Personal Injury Assessment Board Act 2003.

4

(2) Such further and other Orders as the Court thinks fit.

5

(3) Costs.

6

2. On the 19 th February, 2004 proceedings between the plaintiff and the North Eastern Health Board were commenced by way of Plenary Summons. The plaintiff's claim arises out of an alleged assault which took place in 1963 when the plaintiff was a patient in Monaghan General Hospital. On the 9 th November, 2009 Monaghan County Council were joined as a co-defendant by the plaintiff on the basis that it was at all material times the owner, operator, occupier and manager of Monaghan General Hospital. The plaintiff did not have on the date of moving its motion to join Monaghan County Council to the proceedings or at any time thereafter an Authorization from the Personal Injury Assessment Board to bring proceedings against Monaghan County Council. The second defendant argues that pursuant to the Personal Injury Assessment Board Act 2003, (hereinafter referred to as the PIAB Act) unless and until an application is made to the Board in relation to the relevant claim and then only when the bringing of those proceedings is authorized no proceedings may be brought in respect of that claim. The second defendant maintains the plaintiff failed in its legal obligation to obtain an authorization from the Personal Injury Assessment Board in relation to Monaghan County Council and therefore the proceedings against Monaghan County Council are not properly before the Court.

7

The plaintiff argues that as is evident from the amended Plenary Summons, Monaghan County Council was effectively joined to proceedings dated the 19 th February, 2004, albeit that joinder occurred in November 2009. These proceedings pre-date the coming into effect of the PIAB Act 2003 (Commencement) (No. 2) Order 2004. As such the provisions of the PIAB Act do not apply to these proceedings which are prosecuted by way of Plenary Summons and Statement of Claim. Without prejudice to this submission the plaintiff argues that the instant claim seeks various declaratory reliefs which exclude it from the provisions of the PIAB Act. This is evident from Section 4 of the Act which defines a 'civil action' as one where damages are sought to be recovered for Personal Injuries but does not include an action intended to be pursued which in addition to damages for the foregoing matters it is bona fide intended and not for the purpose of seeking to circumvent the operation of section 3, to claim damages or other relief in respect of any other cause of action. It is submitted that in the instant claim the plaintiff seeks various declaratory relief's not appropriate to be determined by the PIAB provisions. The claim also seeks to recover damages in respect of breach of fiduciary duty, assault, trespass and intentional infliction of emotional distress. Section 2 of the Civil Liability and Courts Act specifically excludes an action for trespass to the person in the definition of a Personal Injuries Action. It is also submitted on behalf of the plaintiff that the Court...

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