Noel Recruitment (Ireland) Ltd v Personal Injuries Assessment Board

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMR JUSTICE MICHAEL PEART
Judgment Date04 May 2016
Neutral Citation[2016] IECA 129
Docket NumberRecord Number: 2015/162
Date04 May 2016

[2016] IECA 129

COURT OF APPEAL

CIVIL

Peart J.

Record Number: 2015/162

Peart J.

Irvine J.

McDermott J.

BETWEEN:
NOEL RECRUITMENT (IRELAND) LIMITED
APPLICANT/FIRST RESPONDENT
- AND -
PERSONAL INJURIES ASSESSMENT BOARD
RESPONDENT/SECOND RESPONDENT
- AND -
MORO ISSAK, OTHERWISE KNOWN AS MICHAEL CHAPWANYA
NOTICE PARTY/APPELLANT

Damages ? Personal injuries ? Functus officio ? Applicant seeking an order quashing a second authorisation by the respondent ? Whether the second authorisation was invalid

Facts: The notice party/appellant, on the 23rd October 2009, sustained an injury while working at Keelings warehouse in Ballymun, Dublin. He commenced the process of seeking damages under the name Michael Chapwanya by lodging an application with the second respondent, the Personal Injuries Assessment Board (PIAB), on the 30th August 2010 wherein he named the applicant/first respondent, Noel Recruitment Ltd (NR), and Keelings Ltd as respondents, and sought an assessment of compensation for his injuries pursuant to s. 11 of the Personal Injuries Assessment Board Act 2003. Under the name Moro Issak, the notice party lodged a second application under s. 11 with PIAB for an assessment of damages in respect of precisely the same alleged accident and injury naming NR and Keelings Ltd as respondents, but adding Tesco as a third respondent. On the 11th October 2013, NR corresponded with PIAB stating their view that the second authorisation was invalid, and that PIAB had acted without lawful authority and beyond any powers conferred upon it by the 2003 Act. NR sought PIAB?s concession that the second authorisation was null and void, and a statement that in the absence of that concession being received by the 14th October 2013 judicial review proceedings would be commenced. On the 14th October 2013, PIAB responded by stating its view that the second authorisation was not invalid and that it would strenuously oppose any such judicial review proceedings. By way of?ex parte?application on the 21st October 2013 leave was granted to seek the reliefs as set forth in the applicant?s statement of grounds, essentially seeking: (i) an order quashing the second authorisation; or alternatively (ii) a declaration as to its invalidity; and further or in the alternative (iii) a declaration that the second authorisation was made ultra vires the powers of PIAB. The matter was heard by Kearns P on the 16th January 2015, and in a reserved judgment delivered on the 23rd January 2015 he concluded that NR was entitled to an order quashing the second authorisation. In addition he ordered that NR was entitled to its costs from the 24th April 2014 against both PIAB and the notice party, and that PIAB in turn was entitled to recover from the notice party any costs which it is obliged to pay to NR on foot of the order. Upon the matter being later mentioned to the President, the Court?s order was amended to reflect the declaration as to the invalidity of the second authorisation in so far as it authorises the notice party to bring proceedings against NR. The notice party appealed to the Court of Appeal against the judgment of Kearns P. His grounds of appeal made a number of complaints in relation to the conclusions of the President: (a) Where there is ambiguity he failed to construe the relevant provisions in a way which would uphold the notice party?s right of access to the courts to seek redress for his injuries; (b) He held that there would be absurdity if PIAB was found not to be??functus officio??having granted the first authorisation; (c) He erred in holding that the notice party relied upon s. 46(3) of the Act, whereas in fact he was relying on s. 46(1) of the Act; (d) He relied for his conclusions in relation to?res judicata?on case law which is distinguishable from the present case, whereas the only relevant case namely?Re Lynham?s Estate?[1928] IR 127 does not support the President?s analysis.

Held by Peart J that having issued the first authorisation to enable proceedings to be commenced against NR, PIAB had performed its statutory function, and thereafter could not issue another authorisation in respect of the commencement of proceedings against NR; the second authorisation was not lawful as against NR. In that limited sense, Peart J held that PIAB was to be regarded as functus officio in the matter. Peart J was satisfied that a declaration as to the invalidity of the second authorisation in so far as it authorised the commencement of proceedings against NR was warranted.

Peart J held that the appeal should be dismissed.

Appeal dismissed.

JUDGMENT OF MR JUSTICE MICHAEL PEART DELIVERED ON THE 4TH DAY OF MAY 2016:
1

The facts of this case are so unusual that they give rise to a particular issue for the first time as far as I am aware since the Personal Injuries Assessment Board (PIAB) was established following the enactment of the Personal Injuries Assessment Board Act, 2003 (?the Act of 2003?). Why the issue has arisen has not been explained, but that is not the point. Its resolution will be a matter of statutory interpretation. Kearns P. determined the issue in favour of the applicant (NR) in a reserved judgment delivered on the 16th January 2015, and it is from that judgment and order made on foot of it that the notice party now appeals. PIAB has adopted a neutral position on this appeal, except in relation to aspects of the costs order made which I shall come to in due course, and save also in respect of certain comments by Kearns P. in his judgment with which it wishes to take issue and wishes this Court to ?vary?.

2

The story begins on the 23rd October 2009 when the notice party sustained an injury when lifting a sack of potatoes while working at Keelings warehouse in Ballymun, Dublin. He commenced the process of seeking damages for these injuries under the name Michael Chapwanya by lodging an application with PIAB on the 30th August 2010 wherein he named NR and Keelings Ltd as respondents, and sought an assessment of compensation for his injuries pursuant to s. 11 of the Act of 2003.

3

NR did not respond to the notice pursuant to s. 13 of the Act served upon it by PIAB on 1st October 2010, and was accordingly deemed to have consented to an assessment of damages under s. 14 of the Act. Nevertheless, by letter dated 16th March 2011 PIAB wrote to NR notifying it of its decision to authorise the bringing of proceedings by the notice party, and stating in conclusion: ?As this concludes our involvement in the matter, we have closed our file?.

4

The notice party was sent that authorisation, yet for some reason not explained he failed to issue any proceedings on foot of it.

5

Instead, under the name Moro Issak (aka Michael Chapwanya) he lodged a second application under s.11 of the Act with PIAB for an assessment of damages in respect of precisely the same alleged accident and injury naming NR and Keelings Ltd. as respondents, but adding Tesco as a third respondent. This second application to PIAB though bearing the date ?5th March 2011? was, it is accepted, only received by PIAB on the 5th October 2011.

6

Following the notification to it of the second application by notice dated 30th August 2012, NR responded by email dated 1st October 2012 stating that it did not consent to the assessment of damages by PIAB who then notified NR on the 25th July 2013 of its decision to authorise the commencement of proceedings by the notice party.

7

Each authorisation bears the same authorisation reference number, namely EL0906201040898.

8

On the 30th July 2013 the notice party, through his solicitor, issued a personal injury summons on foot of the second authorisation dated 25th July 2013, naming Keelings (Distribution) Limited, Noel Recruitment (Ireland) Limited and Tesco Ireland Limited as defendants.

9

After it was served with a copy of the personal injury summons, solicitors on behalf of NR corresponded with PIAB firstly by letter dated 27th September 2013 seeking an explanation of the basis upon which two authorisations in respect of the same claimant and the same accident could issue on separate dates. They also pointed out that prior to the issue of the second authorisation the claim had became statute-barred on the 30th October 2012. Finally, NR's solicitor stated that they accepted that it was possible for a second authorisation to issue in respect of the same accident and injury where the claimant sought merely to add another defendant to the proceedings, but that in such an event the fresh authorisation would name only that added party, and not those in respect of which the first authorisation had issued.

10

Prior to any substantive reply by PIAB, NR's solicitors wrote again on the 11th October 2013 stating their view that the second authorisation was invalid, and that PIAB had acted without lawful authority and beyond any powers conferred upon it by the Act of 2003. The latter went on to seek PIAB's concession that the second authorisation was null and void, and to state that in the absence of that concession being received by the 14th October 2013 judicial review proceedings would be commenced.

11

By letter dated 14th October 2013, PIAB responded by stating its view that the second authorisation was not invalid and that it would strenuously oppose any such judicial review proceedings, and requested prior notice of any application for leave to seek reliefs by way of judicial review. It is not clear whether such advance notice was given, but in any event by way of ex parte application on the 21st October 2013 leave was granted to seek the reliefs as set forth in the applicant's statement of grounds, essentially seeking:

(i) an order quashing the second authorisation,; or alternatively

(ii) a declaration as to its invalidity; and

(iii) further or in the...

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