High Court dismisses claim against County Council for failure to obtain PIAB authorization before joining as defendant.

Neutral Citation Number [2012] IEHC 190

THE HIGH COURT

JUDICIAL REVIEW

[No. 2004 2102 P]

Between:

AIDAN CUNNINGHAM

PLAINTIFF

v.

NORTH EASTERN HEALTH BOARD AND BY ORDER MONAGHAN COUNTY COUNCIL

DEFENDANT

Judgment of Mr. Justice Hedigan delivered the 15th of May 2012

1. The second defendant Monaghan County Council seek the following reliefs:

(1) An order striking out the plaintiff's claim against Monaghan County Council for failure on the part of the plaintiff to first

seek an authorization from the Personal Injury Assessment Board pursuant to Section 11 of the Personal Injury

Assessment Board Act 2003.

(2) Such further and other Orders as the Court thinks fit.

(3) Costs.

2. On the 19th February, 2004 proceedings between the plaintiff and the North Eastern Health Board were commenced by way of

Plenary Summons. The plaintiff's claim arises out of an alleged assault which took place in 1963 when the plaintiff was a patient in

Monaghan General Hospital. On the 9th November, 2009 Monaghan County Council were joined as a co-defendant by the plaintiff on

the basis that it was at all material times the owner, operator, occupier and manager of Monaghan General Hospital. The plaintiff did

not have on the date of moving its motion to join Monaghan County Council to the proceedings or at any time thereafter an

Authorization from the Personal Injury Assessment Board to bring proceedings against Monaghan County Council. The second

defendant argues that pursuant to the Personal injury Assessment Board Act 2003, (hereinafter referred to as the PIAB Act) unless

and until an application is made to the Board in relation to the relevant claim and then only when the bringing of those proceedings is

authorized no proceedings may be brought in respect of that claim. The second defendant maintains the plaintiff failed in its legal

obligation to obtain an authorization from the Personal Injury Assessment Board in relation to Monaghan County Council and therefore

the proceedings against Monaghan County Council are not properly before the Court.

The plaintiff argues that as is evident from the amended Plenary Summons, Monaghan County Council was effectively joined to

proceedings dated the 19th February, 2004, albeit that joinder occurred in November 2009. These proceedings pre-date the coming

into effect of the PIAB Act 2003 (Commencement) (No.2) Order 2004. As such the provisions of the PIAB Act do not apply to these

proceedings which are prosecuted by way of Plenary Summons and Statement of Claim. Without prejudice to this submission the

plaintiff argues that the instant claim seeks various declaratory reliefs which exclude it from the provisions of the PIAB Act. This is

evident from Section 4 of the Act which defines a 'civil action' as one where damages are sought to be recovered for Personal Injuries

but does not include an action intended to be pursued which in addition to damages for the foregoing matters it is bona fide intended

and not for the purpose of seeking to circumvent the operation of section 3, to claim damages or other relief in respect of any other

cause of action. It is submitted that in the instant claim the plaintiff seeks various declaratory reliefs not appropriate to be

determined by the PIAB provisions. The claim also seeks to recover damages in respect of breach of fiduciary duty, assault, trespass

and intentional infliction of emotional distress. Section 2 of the Civil Liability and Courts Act specifically excludes an action for

trespass to the person in the definition of a Personal Injuries Action. It is also submitted on behalf of the plaintiff that the Court has

by virtue of Order 15 Rule 13 of the Rules of the Superior Courts an inherent jurisdiction in relation to the adding of a defendant or

plaintiff in any matter. In the present case the 2nd named defendant was not joined or sued in the first instance by virtue of the tact

that the first named defendant by letter dated the 26th August, 2003 identified themselves as the appropriate defendant in answer to

an initiating letter from Mc Mahon O'Brien Downes Solicitors dated the 29th July, 2003.

Decision of the Court

3. The PIAB Act 2003 Act sets out to regulate the processing of complaints of personal injuries resulting from the torts referred to in

the Act. If a claim is one to which the Act applies, then it is subject to processing under the mandatory procedural framework

contained in that Act. This will result in the assessment of damages or the issuing of an authorization to bring court proceedings.

Section 12(1) of the 2003 Act stipulates that an application first be submitted to PIAB for an authorization before court proceedings

may be brought. lt contains a statutory prohibition on actions being instituted at all unless and until an application is made to PIAB

and an authorization is issued; only then can court proceedings be brought.

4. In Sherry v Primark and Cleaning Services Limited [2010] IEHC 66 O'Neill J. stated at paragraph 5.3 as follows:-

"...the purpose of the Act as gleaned from the preamble and the general scheme of the Act... strongly suggests that the

intention of the Oireachtas was to prevent or prohibit the commencement of court proceeding until the procedures set

out in the Act of 2003 were followed leading to an assessment of damages or the issuance of an authorization. Thus in

my view the correct conclusion is that s.12(1) operates as a jurisdictional rather than a procedural provision, so that a

court does not have jurisdiction to permit the commencement of proceedings in respect of a relevant claim, until the

foregoing procedures under the Act of 2003 have been exhausted."

5. This means that if the provisions of the PIAB Act apply, this court has no jurisdiction to deal with the case.

6. The defendant Monaghan County Council who are the moving party claim, and it is not denied that when the plaintiff applied to join

them he did not have the required authorization from PTAB. On this basis they argue the claim should be struck out.

7. The plaintiff argues firstly that because the original proceedings were issued on the I 9th February 2004, some three months prior

to the commencement of the PIAB Act, the Act does not apply. Secondly, the plaintiff argues that s.4 of the PIAB Act defines a civil

action as one where damages are sought for personal injuries but does not include an action intended to be pursued to claim damages

or other relief in respect of any other cause and action. This exclusion does not apply if the bringing of it is not bona fide and is

intended to circumvent s.3. The plaintiff argues that the original proceedings included claims not just for damages for personal injuries

but also for declarations. These non personal injury claims are the plaintiff argues therefore not civil actions and are not covered by

the PIAB Act requirement. They cannot moreover be described as not bona fide or intended to circumvent s.3 because they were

pleaded before the Act came into existence.

8. Are these proceedings subject to the PIAB Act and not excluded from it because the original proceedings were commenced prior to

the 1st June, 2004. In Allied Irish Coal Supplies v Powell Duffryn [1984]2 LR. the Supreme Court held that a court would not permit a

person to be made a defendant in an existing action at a time when he could rely on the Statute of Limitations to bar the

proceedings. Murphy J held as follows at 533:-

"It is a well established rule of practice that a court will not permit a person to be made a defendant in an existing action,

at a time when he could rely on the Statute of Limitations as barring the plaintiff from bringing a fresh action against him

(see Liff v. Peasley [1980] I W.L.R 781 and Ketteman v. Hansel Properties Ltd [1987] A.C. 189".

Thus the nature of the application to join Monaghan County Council is that of new proceedings. This being so, the PIAB Act is

applicable even though the original proceedings predate the Act.

9. Are the proceedings a 'civil action' within the meaning of s. 4. Is this an action in which, in addition to damages for personal injury,

it is intended to claim damages or other relief in respect of any other cause of action. It must be accepted that the circumvention

and bona fide exceptions do not apply because the plaintiff pleaded for assault, trespass to the person and declarations in the original

pleadings before the PIAB Act commenced. Assault and trespass to the person in the context of these proceedings seem to be

included in the description of personal injury. Declarations do not but the question to ask is do these non personal injuries claims

constitute a claim for damages or other relief in respect of any other cause of action. It seems to me that the entire nature of this

case is one of personal injury and no other cause of action is being referred to when the plaintiff refers to trespass to the person or

declarations. The plaintiff alleges against Monaghan County Council that it owed him a duty which it breached as a result whereof he

sustained the personal injury of which he complains. It seems to me that the other matters raised in the pleadings are just different

ways of seeking the same thing i.e. damages for personal injury.

10. To summarize, the joinder of Monagahan County Council is a form of new proceeding which was initiated when application was

made to the High Court to join them in 2008. As such it was subject to the requirement for authorization by PIAB. This is a

jurisdictional matter and without this authorization this court has no jurisdiction to entertain the new proceedings. The proceedings

are a civil action within the meaning of s. 4 of the PIAB Act and are not excluded by s.4 (1)(i). The case against Monaghan County

Council must be dismissed.