High Court: Girl granted order rejecting €21K damages assessment made by PIAB
A girl who initially accepted a €21,000 damages assessment from the Personal Injuries Assessment Board (PIAB) for injuries sustained in a road traffic accident has been granted an order rejecting this assessment and a declaration that the PIAB can authorise legal proceedings.
Finding that the initial decision to accept the assessment was not binding on the minor, Mr Justice Garrett Simons was also satisfied that the assessment did not reflect the full value of the claim.
Describing the case as “unusual”, Mr Justice Simons said it would be unfair to expect the respondent to bear the costs of the application which would have been unnecessary if the assessment had been rejected from the outset.
Assessment by the Personal Injuries Assessment Board
In September 2017, the applicant, Ella Dunne, was 15 when she sustained personal injuries as a result of a road traffic accident. Under the Personal Injuries Assessment Board Act 2003, claimants in personal injuries proceedings typically have to apply to the PIAB for an assessment of damages.
Mr Justice Garrett explained that there are two contingencies provided for in the legislation:
- If either the claimant or respondent rejects the assessment, then PIAB will authorise the claimant to institute legal proceedings.
- If the claimant and respondent both accept the assessment, then the assessment becomes enforceable as an “Order to Pay”. The payment of the amount specified in an “Order to Pay” constitutes a “satisfaction” of the claimant’s personal injuries claim. If the claimant is a minor, an application must be made to the appropriate Court for approval of the acceptance of the assessment.
In February 2018, a medical report stated that Ms Dunne had sustained significant neck and muscle spasm and pain as a result of the accident, but that her condition would “gradually improve over the next twelve to eighteen months”.
Through her mother and next friend, Jacqueline Kennedy, Ms Dunne initially indicated that she intended to accept the PIAB’s assessment of €20,000 in general damages (together with €1,187 in respect of special damages). In October 2018, PIAB acknowledged receipt of this acceptance and indicated that it was closing its file.
Change of Position
Since Ms Dunne was (and continues to be) a minor, the next step was an application for court approval. However, before the application came before the Court, Ms Kennedy sought additional legal advice concerning the value of the claim. Due to ongoing problems with Ms Dunne’s ankle since the accident, further medical reports were obtained in February and March 2019, which indicated that surgical intervention might be required.
Consequently, when the matter came before the High Court for ruling in July 2019, Ms Dunne invited the Court to reject the assessment which had previously been accepted by her next friend.
Mr Justice Simons said it was an “unusual feature of the present case” that the position changed during the process.
Firstly, the Court had to consider whether prior acceptance of the assessment gave rise to a form of estoppel which precluded the change of position.
In this regard, Mr Justice Simons explained that section 33 of the Act provides, inter alia, that an assessment which has been accepted by a claimant will normally be binding on them. However, considering section 35(4), a minor will not be bound by an assessment accepted on their behalf unless and until the assessment is subsequently approved by the appropriate Court.
Secondly, the Court had to consider whether it was appropriate to bring the application to the High Court rather than the Circuit Court. Mr Justice Simons said that the key criterion for determining which Court should hear an application is the assessment amount.
The monetary jurisdiction of the Circuit Court in personal injuries is up to €60,000. The High Court has concurrent jurisdiction to make awards of less than €60,000; however, under section 35(5), the application should be made to whichever Court “possesses the lesser or the least jurisdiction to make an award of damages”. Therefore in the present case, the application for approval should have been made to the Circuit Court.
Mr Justice Simons presumed that the application had been made to the High Court in circumstances where Ms Kennedy envisaged the award of damages to exceed €60,000 – thus going beyond the monetary jurisdiction of the Circuit Court in personal injury proceedings.
While accepting that the present application should not have been brought before the High Court, Mr Justice Simons said he would take “the very unusual step of accepting jurisdiction” and avoid putting Ms Dunne through “the time and trouble of making a fresh application to the Circuit Court”.
Thirdly, having regard to the 2019 medical reports and the ongoing difficulties with Ms Dunne’s ankle, Mr Justice Simons was satisfied that the assessment did not reflect the full value of the claim. As such, Mr Justice Simons made an order rejecting the PIAB assessment. Having regard to the Book of Quantum (2016), Mr Justice Simons said it was doubtful the award at trial would exceed €60,000 – but that it was ultimately for Ms Kennedy to decide in what jurisdiction to issue.
Under section 35 of the Act, costs of applications for PIAB assessment approval shall be borne by the respondents. However, in this case, the application would not have been necessary if the assessment had been rejected from the outset.
While commenting that the reasons for the change of position were understandable, Mr Justice Simons said, “it would be unfair to expect the respondent to bear the costs of this avoidable and unnecessary application”.
© Irish Legal News Ltd 2020