Personal Injuries Board’s second authorisation for claim on same facts held to be invalid

About this case:

• Judgment:
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The case began with an incident in 2009 in which Moro Issak, otherwise known as Michael Chapwanya (the notice party), incurred an injury when lifting a sack of potatoes while working at Keelings warehouse in Ballymum, Dublin.

He commenced seeking damages under the name Michael Chapwanya by lodging an application with the PIAB, naming Noel Recruitment (Ireland) Limited (NR) and Keelings Limited as respondents.

NR did not respond to a notice served upon it by PIAB, and on 16 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”.

However, rather than issuing proceedings, the notice party lodged a second application under the name of Moro Issak, in respect of the same incident, but adding Tesco as a third respondent.

Again, PIAB authorised the commencement of proceedings, with each authorisation bearing the same reference number.

Following the second authorisation, the notice party issued a personal injury summons.

NR then entered into correspondence with PIAB, seeking an explanation of the existence of two authorisations for the same incident, and noting that the claim would have become statute barred if not for the second authorisation.

They then pursued judicial review, seeking an order quashing the second authorisation, or a declaration of its invalidity and a declaration that the second authorisation was made ultra vires the powers of PIAB.

Judgment was given on the 23rd January 2015, and the High Court concluded that NR was entitled to an order quashing the second authorisation, as well as costs against both PIAB and the notice party, while PIAB was entitled to recover any costs it had to pay NR from the notice party.

In the High Court the notice party had submitted that his constitutional right of access to the courts would be breached if the second authorisation was held to be invalid, that s.46(3)(b) of the Personal Injuries Assessment Board Act, 2003 permitted a second authorisation in circumstances where through “a genuine oversight or ignorance of all the facts relating to the matter” the applicant had omitted to specify in the s. 11 application one or more persons as being a person or persons liable to the applicant in respect of the claim.

However, the High Court found that there was no denial of access to the courts, that the facts of the case did not bring it within s.46, and that the Act did not allow for the extension of periods for bringing claims through repeated applications.

The notice party appealed, arguing that where there was ambiguity the High Court should have construed the relevant provisions in a way which would uphold the notice party’s right of access to the courts, and that there would be absurdity if PIAB was found not to be ‘functus officio’ having granted the first authorisation, that the High Court erred in holding upon s. 46(3) of the Act, whereas in fact he was relying on s. 46(1) of the Act, and that the High Court relied on case law that was distinguishable from the present case, whereas the only relevant case namely Re Lynham’s Estate I.R. 127 did not support the Court’s analysis.

In relation to the latter point, the Court of Appeal found that it could not agree that Re Lynham’s Estate can be relied upon in support of the notice party’s submissions.

The decision in the case as to the finality or otherwise of the decision of the Judicial Commissioner was decided on the basis that that decision was provisional in nature only and could therefore be revisited at a later stage, which was not the case here.

In relation to the former points, the Court of Appeal found that a proper interpretation of the statutory scheme put in place in respect of personal injury claims by the Act of 2003 and the Regulations made pursuant to s. 46 thereof, leads to the conclusion that once it issues an authorisation to an applicant who has lodged an application for assessment of damages under s.11 of the Act, PIAB is thereafter precluded from issuing another authorisation on foot of a later application by the same applicant in respect of the same injury, unless it is doing so under some other provision of the Act which empowers it to do so.

In relation to the right to access justice, this existed subject to time limits. In the present case, the applicant had not commenced proceedings after the first authorisation, and by the time he had issued a personal injury summons, the two-year limitation period after the first authorisation had expired.

In the Court’s view there was nothing ambiguous or absurd about the provisions in question or the scheme generally.

In fact, absurd situations would arise if the notice party was correct in submitting that absent some specific exclusion of the possibility to lodge multiple applications it must be permissible to do so out of respect for a claimant’s right of access to justice.

It was also worth noting that applications made to PIAB are not cost neutral from the respondent’s point of view. Upon being notified by PIAB of a claim being made, the respondent will need to notify its insurer and maybe consult its lawyers as to how to respond to the claim, including as to whether to consent to an assessment being made.

The objective of certainty and finality was clearly evident in s. 47 of the Act which provides that while a claimant may withdraw his/her application to have damages assessed at any time, a consequence is that no fresh application may be lodged thereafter, and no proceedings may be issued.

The Court stated that: “The fact, as submitted, that under s. 46(1) of the Act PIAB is empowered to make rules in respect of applications under s. 11, and by implication therefore rules that would specifically exclude a second application, or at least make it clear in some way that such an application was not possible, and it has not done so, cannot leave open an interpretation that would enable this Court to conclude that the second authorisation in this case is not invalid as against NR.”

Thus, the Court was of the view that having issued the first authorisation to enable proceedings to be commenced against NR PIAB has performed its statutory function, and thereafter could not issue another authorisation in respect of the commencement of proceedings against NR.

The Court was satisfied that a declaration as to the invalidity of the second authorisation in so far as it authorises the commencement of proceedings against NR was warranted, and the appeal was dismissed.