P.R v K.C.

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 11 March 2014
• Neutral Citation: [2014] IEHC 126
• Court: High Court
• Date: 11 March 2014

[2014] IEHC 126

THE HIGH COURT

[No. 2566 P./2006]

R (P) v C (K) (legal personal representative of C (M) (deceased))

BETWEEN

P.R.

PLAINTIFF

AND

K.C.

LEGAL PERSONAL REPRESENTATIVE OF THE ESTATE OF M.C. DECEASED

DEFENDANT

RSC O.20 r6

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S12(1)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S3

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S3(D)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S4

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S4(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

CAMPBELL v O'DONNELL 2009 1 IR 133 2008 2 ILRM 241 2008/6/1129 2008 IESC 32

CUNNINGHAM v NORTH EASTERN HEALTH BOARD UNREP HEDIGAN 15.5.2012 2012 IEHC 190

GUNNING v NATIONAL MATERNITY HOSPITAL & ORS 2009 2 IR 117 2008 27 6038 2008 IEHC 352

CARROLL v MATER MISERICORDIAE HOSPITAL 2011 2 IR 411 2011/8/1823 2011 IEHC 231

JENNINGS & ORS THE LAW OF PERSONAL INJURIES 2011 PARA 1.74

LETANG v COOPER 1964 2 AER 929 1965 1 QB 232 1964 3 WLR 573 1964 2 LLOYDS REP 339

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

DULLAGHAN v HILLEN 1957 IR JR REP 10

DEVLIN v ROCHE & ORS 2002 2 IR 360 2002 2 ILRM 192 2002/71437

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

MCMAHON & BINCHY LAW OF TORTS 4ED 2013 898

HANRAHAN v MERCK SHARPE & DOHME (IRL) LTD 1988 ILRM 629

SULLIVAN v BOYLAN CONTRACTORS LTD & MCCARTAN (NO 2) UNREP HOGAN 12.3.2013 2013 IEHC 104

G (J) (A MINOR) & ORS v JUDGE STAUNTON & HEALTH SERVICE EXECUTIVE UNREP HOGAN 27.11.2013 2013 IEHC 533

High Court - Litigation - Civil procedure – Personal injury - Assault - Trespass to the person - Breach of constitutional right to bodily integrity - Battery - Emotional suffering and distress - Sexual assault - Resulting injury - Damages - Substance of the action - Personal Injury Assessment Board - Authorisation - Limitation period - Personal Injuries Assessment Board Act 2003 - Constitution of Ireland

Facts: These proceedings concerned a claim for damages (including aggravated and exemplary damages) for assault, battery, trespass to the person, breach of the constitutional rights of the plaintiff and for the intentional infliction of emotional suffering and distress. It was alleged that the plaintiff had been wrongfully sexually assaulted and abused by the defendant. This judgment refers to a preliminary issue on whether the proceedings were barred by virtue of s. 12(1) of the Personal Injuries Assessment Board Act 2003 ("the 2003 Act"), on the basis that the plaintiff did not seek and obtain an authorisation from the PIAB prior to bringing the proceedings.

The plaintiff argued that authorisation from the PIAB was not a prerequisite to issuing the proceedings because a claim for damages for assault and trespass to the person was not covered by the 2003 Act. The defendant argued that such authorisation was required because the action should be properly regarded as a civil action for personal injuries as defined in s. 4 of the 2003 Act and, therefore, fell within the scope of s. 3(d) of that Act.

Held by Baker J. that it was for the Court to determine whether the plaintiff"s action was effectively a civil action for personal injuries. It was also noted that the relevant case law made it clear that the court was obliged to answer that question by looking to the substance of the action and not merely to the way in which it was pleaded. In regards to the torts of assault and trespass to the person, it was said that no proof of actual damage was required for a plaintiff to succeed in recovering damages. It, therefore, followed that if the plaintiff"s primary cause of action was for damages for assault or trespass to the person, it could not be regarded as a claim for damages for personal injuries even if such injuries resulted from the tortious conduct.

In the present case, it was noted that the plaintiff"s action was based on the plea that he endured wrongful sexual assault and abuse. On that basis, it was held that the substance of the action was not a civil action for personal injuries because the primary cause of action was clearly damages for assault and trespass to the person as evidence of resulting injury was unnecessary. It was also noted that s. 4(1)(iii) of the 2003 Act outlined how authorisation was not required in any action intended to be pursued in respect of an alleged breach by a person of a provision of the Constitution of Ireland. This was said to apply because the plaintiff also sought damages for breach of his constitutional right to bodily integrity, which was not ancillary to the claim for trespass to the person.

It was, therefore, held that the plaintiff did not require authorisation from the PIAB prior to initiating proceedings against the defendant.

1 JUDGMENT of Ms. Justice Baker delivered on the 11th day of March, 2014

2 1. The plaintiff commenced these proceedings by plenary summons on 8 ^th June, 2006, in which he claimed damages arising from alleged negligence, breach of statutory duty, assault, battery and breach of his constitutional right to bodily integrity. The statement of claim delivered on 28 ^th November, 2007 pleads more narrow heads of claim and claimed damages including aggravated and exemplary damages for assault, battery, trespass to the person, breach of the constitutional rights of the plaintiff and for the intentional infliction of emotional suffering and distress.

3 2. As a matter of law, a general endorsement of claim on a plenary summons is just that, a general statement of the nature of the claim brought by a plaintiff and it is the pleas in the statement of claim that may more properly be characterised as setting out the true nature and basis of a particular claim. Order 20 Rule 6 of the Rules of the Superior Courts allows a plaintiff to alter, modify or extend a claim made in the general endorsement of claim.

4 3. By motion dated 4 ^th July, 2013 judgment was sought against the defendant in default of defence. It was agreed between the legal representatives of the plaintiff and the defendant that a preliminary issue had now arisen and it was appropriate that it should be determined by me prior to hearing the motion concerning default of pleading. This preliminary issue is whether the proceedings are barred by virtue of s. 12(1) of the Personal Injuries Assessment Board Act 2003 ("Act of 2003"), by reason of the fact that the plaintiff did not seek and obtain an authorisation pursuant to the Act prior to bringing these proceedings.

5 4. The question accordingly addressed in this judgment is whether the Act of 2003 applies to the class of claim in this action. The plaintiff argues that as the claim is one for damages for assault that it is not one covered by the Act of 2003, and that a prior authorisation is not required. The defendant asserts that this is a civil action for personal injuries to which the Act applies.

6 5. The Act of 2003 came into force on 28 ^th December, 2003 and s. 3 provides that it applies to civil actions as defined in the four subsections of that section:-

7 a "(a) a civil action by an employee against his or her employer for negligence or breach of duty arising in the course of the employee's employment with that employer,

8 (b) a civil action by a person against another arising out of that other's ownership, driving or use of a mechanically propelled vehicle,

9 (c) a civil action by a person against another arising out of that other's use or occupation of land or any structure or building,

10 (d) a civil action not falling within any of the preceding paragraphs (other than one arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person). "

11 The first three subsections have no application in this case as they concern civil actions arising in the course of employment, road traffic cases and an action against a person arising from that person's occupation of land. The defendant asserts, however, that the claim in these proceedings falls within the category at s. 3(d) of the Act, being a civil action not falling with any of the preceding paragraphs.

12 6. Section 4 of the Act defines a "civil action" as:-

"an action intended to be pursued for the purpose of recovering damages, in respect of a wrong, for ?Çö"

(a) personal injuries, or

(b) both such injuries and damage to the property (but only if both have been caused by the same wrong). "

13 7. It follows, therefore, that not all civil actions are included within the Act of 2003. Certain exclusions apply under s. 4(1) of the Act and the two classes of action which are relevant to the present case are as follows:-

14 i "(i) an action intended to be pursued in which, in addition to damages for the foregoing matters, it is bonafide intended, and not for the purpose of circumventing the operation of section 3, to claim damages or other relief in respect of any other cause of action,...

15 (iii) an action intended to be pursued in respect of an alleged breach by the State or any other person of a provision of the Constitution."

16 8. The plaintiff asserts that this present action is excluded from the operation of the Act and is not a civil action to which the Act applies because, in essence, this is not a personal injuries action and that the cause of action is assault. It is also asserted that the action is one where the plaintiff seeks damages for a breach of constitutional rights, specifically a breach of the right to bodily integrity.

17 9. It is clear from the case of Sherry v. Primark Limited and Grosvenor Cleaning Services Limited [2010] IEHC 66, [2010] 1 I.R. 407, that s. 12(1) of the Act of 2003 is...