Grimes v O'Dowd

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 29 July 2022
• Neutral Citation: [2022] IEHC 428
• Court: High Court
• Docket Number: 2022 No. 7 PIR

In the Matter of Section 35 of the Personal Injuries Assessment Board Act 2003

Between

Richard Grimes (On Behalf of the Statutory Dependants of the Late Alison Grimes)

Applicant

and

John O'Dowd

Respondent

[2022] IEHC 428

2022 No. 7 PIR

THE HIGH COURT

Fatal injuries – Assessment of damages – Approval – Applicant seeking approval of an assessment of damages – Whether the application ought to be adjourned to allow further evidence

Facts: An application to approve an assessment of damages made by the Personal Injuries Assessment Board (PIAB) came before the High Court. The assessment had been made in respect of a fatal injuries claim arising out of a road traffic accident. The claim had been brought by the applicant, Mr Grimes, the widower of the deceased, on his own behalf and on behalf of all of the statutory dependants. One of the statutory dependants, a daughter of the deceased, had not yet reached the age of eighteen years and was thus a minor or infant in the eyes of the law; accordingly, the PIAB assessment would not become binding unless and until it had been approved by the court. The court was invited to disapprove the PIAB assessment, notwithstanding that the applicant himself had formally accepted the assessment. The applicant considered that the amount of damages assessed was too low, but rather than reject the PIAB assessment himself, he sought instead to have the court refuse to approve the assessment. This was done in an attempt to avoid the adverse costs implications which would otherwise arise in the event that the damages recovered in subsequent legal proceedings were less than the amount available under the PIAB assessment.

Held by Simons J that an application for court approval of a PIAB assessment in the context of a fatal injuries claim may only be brought where the following conditions are met: first, the representative claimant must have accepted the PIAB assessment; secondly, there must be some aspect of the PIAB assessment which is subject to court approval. Simons J held that this will occur most often where one of the statutory dependants is a minor; it will also occur where an adult statutory dependant objects to the acceptance of the PIAB assessment or where it has not been possible to notify all of the adult statutory dependants affected. Simons J held that the fact that the representative claimant has accepted the PIAB assessment may have the consequence that he or she is bound by those aspects of same which are referable to the loss resulting to them personally. Simons J held that the representative claimant and his or her counsel are expected to put before the court relevant information to assist it in reaching its decision on whether or not to approve the PIAB assessment; in certain circumstances, this may entail counsel indicating that he or she does not recommend approval. Simons J held that it is, however, a matter for the court alone to decide whether or not to approve the PIAB assessment. He held that the special costs rules under s. 51A of the Personal Injuries Assessment Board Act 2003 are only triggered where a claimant has not accepted the PIAB assessment; if, conversely, a claimant accepts the assessment, subject to court approval, and the court ultimately determines not to approve the assessment, then any legal proceedings instituted by the claimant thereafter are subject to the normal costs rules. Simons J held that these are to be found, principally, under the Civil Liability and Courts Act 2004; Part 11 of the Legal Services Regulation Act 2015; and the recast Order 99 of the Rules of the Superior Courts.

Simons J held that the application for approval pursuant to s. 35 of the 2003 Act would be adjourned until 10 October 2022 at 11.00 o’clock to allow the applicant to adduce further evidence explaining the basis on which the claim for loss of domestic services had been estimated. Simons J held that the court should also be addressed on whether there was any risk on liability or causation.

Application adjourned.

Appearances on ex parte application

Stephen Lanigan O'Keeffe, SC and David Bulbulia for the applicant, instructed by Staines Law

JUDGMENT of Mr. Justice Garrett Simons delivered on 29 July 2022

INTRODUCTION

1 This matter comes before the High Court by way of an application to approve an assessment of damages made by the Personal Injuries Assessment Board. The assessment has been made in respect of a fatal injuries claim arising out of a road traffic accident. The claim has been brought by the widower of the deceased, on his own behalf and on behalf of all of the statutory dependants.

2 One of the statutory dependants, a daughter of the deceased, has not yet reached the age of eighteen years and is thus a minor or infant in the eyes of the law. Accordingly, the PIAB assessment will not become binding unless and until it has been approved by the court. The requirement for court approval is intended to safeguard the interests of the minor dependant.

3 The unusual feature of the present case is that the court is being invited to disapprove the PIAB assessment, notwithstanding that the applicant himself has formally accepted the assessment. The applicant considers that the amount of damages assessed is too low, but rather than reject the PIAB assessment himself, he seeks instead to have the court refuse to approve the assessment. This is done in an attempt to avoid the adverse costs implications which would otherwise arise in the event that the damages recovered in subsequent legal proceedings are less than the amount now available under the PIAB assessment.

STATUTORY FRAMEWORK

4 Part IV of the Civil Liability Act 1961 creates a right of action where the death of a person is caused by the wrongful act of another. Only one action for damages may be brought against the same person in respect of the death, and the action shall be for the benefit of all of the statutory dependants (as defined). Relevantly, this class includes the spouse and children of the deceased. An action of this type is usually referred to by the shorthand a “ fatal injuries action” or a “ fatal injuries claim”.

5 It should be explained that, under Section 49 of the Civil Liability Act 1961 and an implementing Ministerial Order, the aggregate amount of damages which can be recovered for “ mental distress” in a fatal injuries claim is currently capped at €35,000. The combined total of damages awarded to individual dependants for mental distress resulting from the death cannot exceed this amount. This head of damages is referred to in some of the case law as the “ solatium”.

6 In most instances, it is a necessary first step to the pursuit of a fatal injuries claim that the claimant make an application to the Personal Injuries Assessment Board (“ PIAB”) for an assessment of damages. This procedural step must be completed prior to the institution of any legal proceedings. There are a number of exceptions to this requirement: it does not apply, for example, in cases of alleged medical negligence.

7 The requirement to apply for an assessment of damages is provided for under the Personal Injuries Assessment Board Act 2003 (“ PIAB Act 2003”). Importantly, the legislation prescribes that a PIAB assessment can only ever become legally binding in circumstances where both the claimant and the respondent have accepted that assessment. The legislation does not purport to introduce a coercive jurisdiction, whereby the parties are obliged to submit to an adjudication on damages by PIAB. Rather, either party is fully entitled to reject the PIAB assessment.

8 (For completeness, it should be explained that a respondent may be deemed to have accepted the PIAB assessment in certain circumstances, but this does not detract from the principle that the parties are not obliged to submit to an adjudication by PIAB).

9 The outcome, in any particular case, of an application for an assessment of damages will, therefore, depend on the attitude of the claimant and the respondent. If either party rejects the amount of damages as assessed by PIAB, then the claimant will be authorised to bring legal proceedings and to pursue their claim before the courts. Similarly, if PIAB decides, in the exercise of its statutory discretion, not to make an assessment of damages in the particular case, the claimant will, again, be authorised to bring legal proceedings.

10 The other potential outcome, of course, is that both the claimant and respondent might decide to accept an assessment of damages made by PIAB. In such a scenario, the assessment will become binding on the parties and the respondent may thereafter be subject to an “ order to pay” (as defined). This is subject to the proviso, however, that in certain circumstances it will be necessary first to obtain court approval of the assessment of damages.

11 The circumstances in which court approval is required are prescribed as follows under Section 35(1) and (2) of the PIAB Act 2003:

• “35.—(1) This section applies to a relevant claim where—

  • (a) a next friend or the committee of a minor or a person of unsound mind is acting on behalf of the minor or person in respect of the claim, or

  • (b) the claim relates to a proposed action for damages under section 48 of [the Civil Liability Act 1961],

  and the next friend, committee or, as the case may be, the person proposing to bring that action for damages accepts, subject to the assessment being approved under this section, the assessment made under section 20 of the relevant claim.

• (2) Where any enactment or rule of court requires any settlement of a relevant claim to which this section applies to be approved by the court then that enactment or rule of court shall apply, with the necessary modifications, to the assessment referred to in subsection (1) as if proceedings had been brought in relation to the claim, and the court shall have jurisdiction...