Noonan v Electricity Supply Board
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 27 June 2022 |
| Neutral Citation | [2022] IEHC 374 |
| Court | High Court |
| Docket Number | 2022 No. 6 PIR |
In the Matter of Section 35 of the Personal Injuries Assessment Board Act 2003
[2022] IEHC 374
2022 No. 6 PIR
THE HIGH COURT
William Maher for the applicant instructed by Michael Collins & Co. Solicitors
JUDGMENT of Mr. Justice Garrett Simons delivered on 27 June 2022
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 claim for damages arising out of the death of Mr. James Noonan (“ the deceased”). The deceased had been employed for a time by the respondent, the Electricity Supply Board.
The deceased's widow, Mrs. Patricia Noonan, asserts that the deceased had been repeatedly exposed to asbestos fibres during the course of his employment with the respondent and that this exposure caused him to suffer a terminal malignant mesothelioma. Mrs. Noonan seeks to recover damages against the respondent for the loss of her husband. The claim is made on her own behalf and on behalf of the deceased's children and grandchildren.
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, children and grandchildren of the deceased. An action of this type is usually referred to by the shorthand a “ fatal injuries claim”.
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”.
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.
The outcome, in any particular case, of an application for an assessment of damages will 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.
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.
The circumstances in which court approval is required are prescribed as follows under section 35(1) and (2) of the Personal Injuries Assessment Board Act 2003:
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“35.—(1) This section applies to a relevant claim where—
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(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
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(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.
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(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 to approve the assessment accordingly on application in that behalf being made by the next friend, committee or other person referred to in that subsection.”
The combined effect of these two subsections is to ensure consistency of approach to the protection of vulnerable persons as between (i) the assessment of damages procedure under the Personal Injuries Assessment Board Act 2003, and (ii) legal proceedings before the courts.
To elaborate: the approval of the court is required in order for a proposed settlement of legal proceedings, which involve a vulnerable person, to be effective and enforceable. For example, Order 22, rule 10 of the Rules of the Superior Courts provides that no settlement of proceedings, in which damages are claimed by or on behalf of an infant or a person of unsound mind, is valid without the approval of the court. The requirement for court approval is intended to ensure that the interests of vulnerable persons, such as a minor or a person of unsound mind, are properly protected in the settlement of proceedings. The court is in a position to provide a neutral assessment of the value of the claim and of the reasonableness of the settlement figure, having regard to issues such as any risk on liability. The requirement for court approval also constitutes a safeguard against possible error on the part of the legal advisors acting on behalf of the vulnerable person.
The same safeguards apply to the assessment of damages procedure, by virtue of section 35 of the Personal Injuries Assessment Board Act 2003. The operation of the section is somewhat opaque. In order to determine whether court approval is required for a PIAB assessment, it is necessary to consider whether court approval would have been required for the settlement of legal proceedings arising out of the same claim. This involves consideration of what would have happened if, counterfactually, the claim for damages had not concluded with the parties accepting the PIAB assessment, but had instead been pursued by way of legal proceedings. If court approval would have been required before an offer of settlement in those hypothetical legal proceedings could become effective, then court approval is equally required for the PIAB assessment.
On the facts of the present case, had Mrs. Noonan (the deceased's widow) and the...
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Grimes v O'Dowd
...for loss of financial dependency to adult dependants with full legal capacity. See, for example, Noonan v. Electricity Supply Board [2022] IEHC 374. 37 It would not be open to a representative claimant, under the guise of seeking approval for the PIAB assessment insofar as it affects the in......
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Cogley (A Minor) v Foley
...not become binding unless and until the assessment has been approved by the court. See, generally, Noonan v. Electricity Supply Board [2022] IEHC 374. Relevantly, court approval is required where, as in the present case, the injured party is a child under the age of eighteen years. If court......