Court of Appeal holds PIAB cannot issue a second authorisation after the first, upholding the first applicant's position.

COURT OF APPEAL

CIVIL

Record Number: 2015/162

Peart J.

Irvine J.

McDermott J.

BETWEEN:

NOEL RECRUITMENT (IRELAND) LIMITED

APPLICANT/FIRST RESPONDENT

- AND -

PERSONAL INJURIES ASSESSMENT BOARD

RESPONDENT/SECOND RESPONDENT

- AND -

MORO ISSAK, OTHERWISE KNOWN AS MICHAEL CHAPWANYA

NOTICE PARTY/APPELLANT

JUDGMENT OF MR JUSTICE MICHAEL PEART DELIVERED ON THE 4TH DAY OF MAY 2016:

1. The facts of this case are so unusual that they give rise to a particular issue for the first time as far as I am aware since the

Personal Injuries Assessment Board (PIAB) was established following the enactment of the Personal Injuries Assessment Board Act,

2003 (“the Act of 2003”). Why the issue has arisen has not been explained, but that is not the point. Its resolution will be a matter of

statutory interpretation. Kearns P. determined the issue in favour of the applicant (NR) in a reserved judgment delivered on the 16th

January 2015, and it is from that judgment and order made on foot of it that the notice party now appeals. PIAB has adopted a

neutral position on this appeal, except in relation to aspects of the costs order made which I shall come to in due course, and save

also in respect of certain comments by Kearns P. in his judgment with which it wishes to take issue and wishes this Court to “vary”.

2. The story begins on the 23rd October 2009 when the notice party sustained an injury when lifting a sack of potatoes while working

at Keelings warehouse in Ballymun, Dublin. He commenced the process of seeking damages for these injuries under the name Michael

Chapwanya by lodging an application with PIAB on the 30th August 2010 wherein he named NR and Keelings Ltd as respondents, and

sought an assessment of compensation for his injuries pursuant to s. 11 of the Act of 2003.

3. NR did not respond to the notice pursuant to s. 13 of the Act served upon it by PIAB on 1st October 2010, and was accordingly

deemed to have consented to an assessment of damages under s. 14 of the Act. Nevertheless, by letter dated 16th 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”.

4. The notice party was sent that authorisation, yet for some reason not explained he failed to issue any proceedings on foot of it.

5. Instead, under the name Moro Issak (aka Michael Chapwanya) he lodged a second application under s.11 of the Act with PIAB for

an assessment of damages in respect of precisely the same alleged accident and injury naming NR and Keelings Ltd. as respondents,

but adding Tesco as a third respondent. This second application to PIAB though bearing the date ‘5th March 2011’ was, it is

accepted, only received by PIAB on the 5th October 2011.

6. Following the notification to it of the second application by notice dated 30th August 2012, NR responded by email dated 1st

October 2012 stating that it did not consent to the assessment of damages by PIAB who then notified NR on the 25th July 2013 of its

decision to authorise the commencement of proceedings by the notice party.

7. Each authorisation bears the same authorisation reference number, namely EL0906201040898.

8. On the 30th July 2013 the notice party, through his solicitor, issued a personal injury summons on foot of the second authorisation

dated 25th July 2013, naming Keelings (Distribution) Limited, Noel Recruitment (Ireland) Limited and Tesco Ireland Limited as

defendants.

9. After it was served with a copy of the personal injury summons, solicitors on behalf of NR corresponded with PIAB firstly by letter

dated 27th September 2013 seeking an explanation of the basis upon which two authorisations in respect of the same claimant and

the same accident could issue on separate dates. They also pointed out that prior to the issue of the second authorisation the claim

had became statute-barred on the 30th October 2012. Finally, NR’s solicitor stated that they accepted that it was possible for a

second authorisation to issue in respect of the same accident and injury where the claimant sought merely to add another defendant

to the proceedings, but that in such an event the fresh authorisation would name only that added party, and not those in respect of

which the first authorisation had issued.

10. Prior to any substantive reply by PIAB, NR’s solicitors wrote again on the 11th October 2013 stating their view that the second

authorisation was invalid, and that PIAB had acted without lawful authority and beyond any powers conferred upon it by the Act of

2003. The latter went on to seek PIAB’s concession that the second authorisation was null and void, and to state that in the absence

of that concession being received by the 14th October 2013 judicial review proceedings would be commenced.

11. By letter dated 14th October 2013, PIAB responded by stating its view that the second authorisation was not invalid and that it

would strenuously oppose any such judicial review proceedings, and requested prior notice of any application for leave to seek reliefs

by way of judicial review. It is not clear whether such advance notice was given, but in any event by way of ex parte application on

the 21st October 2013 leave was granted to seek the reliefs as set forth in the applicant’s statement of grounds, essentially seeking:

(i) an order quashing the second authorisation,; or alternatively

(ii) a declaration as to its invalidity; and

(iii) further or in the alternative, a declaration that the second authorisation was made ultra vires the powers of PIAB.

12. In its statement of opposition PIAB did not oppose the making of the declaration as to invalidity of the Authorisation dated the 25

July 2013, but this was without prejudice to any opposition that the notice party might wish to mount. It did, however, oppose the

making of any order to quash the second authorisation, and also any declaration that it had acted ultra vires in issuing that

authorisation. As noted by Kearns P. in his judgment, by the time the matter came for hearing in the High Court, PIAB had altered its

position to some extent by maintaining that any invalidity to the second authorisation extended only to so much of it as permitted the

notice party to commence proceedings against NR. It appears that when the matter came before the High Court, counsel for NR

informed the Court that the relief that it was seeking was confined to the declaration sought at para. D(ii) of the statement of

grounds but confined such to a declaration of invalidity in so far as it authorises Mr Issak to bring proceedings against NR. To this,

PIAB indicated that it did consent to such a declaration, but without prejudice to the notice party’s entitlement to oppose it, PIAB

itself did not oppose the making of a declaration on that limited basis. The hearing before the President proceeded on that basis.

13. The matter was heard by Kearns P. on the 16th January 2015, and in a reserved judgment delivered on the 23rd January 2015 he

concluded that NR was entitled to an order quashing the second authorisation. In addition he ordered that NR was entitled to its

costs from the 24th April 2014 against both PIAB and the notice party, and that PIAB in turn was entitled to recover from the notice

party any costs which it is obliged to pay to NR on foot of the order. Upon the matter being later mentioned to the President, the

Court’s order was amended to reflect the declaration as to the invalidity of the second authorisation in so far as it authorises the

notice party to bring proceedings against NR.

14. 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, since any proceedings which he might seek to commence under the first authorisation

would be statute barred, and therefore bound to fail. He submitted that the scheme of the Act permitted a second authorisation in

some circumstances and referenced in that regard the provisions of s. 46(3)(b) of the Act which enables PIAB to issue an

authorisation to bring proceedings 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. In such circumstances, it was submitted that there was nothing in the Act which made it clear that no second

application could be lodged and that no second authorisation could issue in a case such as the present one.

15. It was submitted on behalf of NR that having granted the first authorisation PIAB was thereafter ‘functus officio’, and had no

jurisdiction to make a further decision on the same matter. It was submitted that if this was not the case, it would have the effect of

enabling the limitation period to be extended, which could not have been intended by the Oireachtas absent some express provision in

that regard. It was submitted also that the circumstances of the present case clearly fall outside s. 46(3)(b) of the Act.

16. In his judgment, the President concluded that there was no denial of access to the courts as submitted by the notice party in

circumstances where he had been given an authorisation but had simply failed to avail of it by commencing proceedings on foot of it.

He concluded also that the facts of the case did not bring it within s. 46 of the Act, there being no evidence of any oversight or

ignorance of all the relevant facts. Having considered the authorities to which he had been referred by NR in support of its argument

that having issued the first authorisation PIAB was thereafter ‘functus officio’, the President concluded his judgment as follows:

“I am satisfied that the statutory scheme governing the respondent does not, either expressly or implicitly, permit the

respondent to consider a second application against the same respondent in respect of the same accident once an

authorisation in respect of that accident has issued. I am fortified in reaching that conclusion having regard to the

implications of any other interpretation in terms of the effect it would have on the provisions of the Statute of

Limitations. The Act does not purport to extend periods fixed for bringing claims under the Statute save as expressly

provided for in the Act. There cannot otherwise be a rolling back of the Statute. A scenario whereby time limits

prescribed by the Statute could be indefinitely deferred by repeated applications to the respondent Board is the very

antithesis of the speedy resolution to claims which the respondent Board was set up to bring about.”

17. The notice party’s grounds of appeal make a number of complaints in relation to the conclusions of the President:

(a) Where there is ambiguity he failed to construe the relevant provisions in a way which would uphold the notice party’s

right of access to the courts to seek redress for his injuries;

(b) He held that there would be absurdity if PIAB was found not to be ‘functus officio’ having granted the first

authorisation;

(c) He erred in holding that the notice party relied upon s. 46(3) of the Act, whereas in fact he was relying on s. 46(1) of

the Act;

(d) He relied for his conclusions in relation to res judicata on case law which is distinguishable from the present case,

whereas the only relevant case namely Re Lynham’s Estate [1928] I.R. 127 does not support the President’s analysis.

Ambiguity

18. The ambiguity in the statutory scheme is said to arise in circumstances where there is no express provision which states that only

one application can be submitted by a claimant under s. 11 of the PIAB Act. The notice party accepts that he was granted an

authorisation on the 16th March 2011, and that he did not commence his proceedings on foot of same. But he submits that there is

nothing in the scheme of the Act which precludes him from lodging another application under s. 11, and in particular he draws

attention to the fact that he did so before the limitation period under s. 3 of the Statute of Limitations (Amendment) Act, 1991, as

amended had expired. He points out therefore that if he had never lodged his first application, his second application would have been

lodged at a time when the limitation period had not expired, and that the clock stopped running on that limitation period until it re-

commenced 6 months after any second authorisation issued. He points to the fact that if the second authorisation is a valid one, his

personal injury summons was issued before the expiration of the limitation period, whereas it would be outside the period if the first

authorisation is held to be the only valid authorisation. It is in the context of that alleged ambiguity or lack of clarity that the notice

party submitted in the High Court and does so again on this appeal that the Act should be construed in favour of permitting his

second application to be the subject of a second authorisation so that he can proceed to have his claim for damages to be

determined as the authorisation permits him to do.

19. In response, NR submits that there is no ambiguity at all in the relevant legislative provisions, and the conclusions reached by the

President do not in any way serve to breach the notice party’s right of access to the courts, since he was given such access by the

first authorisation, and it is simply the case that he denied himself the opportunity to access justice by failing to do what he was

obliged to do under the statutory scheme, namely issue his proceedings on foot of that authorisation within the period prescribed by

statute.

Absurdity

20. The notice party submits that there would be no absurdity arising from an interpretation which would support the validity of the

second authorisation, and therefore that PIAB was not functus officio once it issued its first authorisation on the 16th March 2011.

The absurdity referred to by the President in his judgment arose from his view that to permit a second application under s. 11 to be

lodged in the circumstances of this case would lead to an elongation of the period of limitation provided by s.3 of the Statute of

Limitations (Amendment) Act, 1991 as amended by s. 7 of the Civil Liability and Courts Act, 2004, and that this would run counter to

the stated aim of the PIAB scheme to expedite the determination of personal injury claims. The notice party submits that there is no

such absurdity arising, but that in any event he is not contending for any such elongation of that statutory time limit. He accepts

that any proceedings must be commenced within the permitted time under s. 3 of the 1991 Act as amended, and by reference to s.

50 of the PIAB Act which provides:

“50. – In reckoning any period of time for the purposes of any limitation period in relation to a relevant claim specified

by the Statute of Limitations 1957 or the Statute of Limitations (Amendment) Act 1991, the period beginning on the

making of an application under section 11 in relation to the claim and ending 6 months from the date of issue of an

authorisation under, as appropriate, section 14, 17, 32 or 36, rules under section 46(3) or section 49 shall be

disregarded.”

21. Since s. 3 of the 1991 Act, as amended, requires that proceedings in respect of a claim for personal injuries must be commenced

not later than 2 years from the date on which the cause of action accrued, it is submitted by the notice party that the provisions of

s. 50 of the PIAB Act ensures that any elongation of the limitation period, if it be such at all, is confined to any time taken by PIAB to

consider a second application, and issue an authorisation if indeed an authorisation is required at all, and that any such additional

period would by any standards be short, and therefore of no prejudice to any respondent.

22. NR submits that an absurdity arises from the fact that if a second application is permissible, then maybe a third and more such

applications are equally permissible, and that in such circumstances no respondent could ever be certain when the process had

concluded. It is submitted that once an authorisation has issued and a respondent is notified of that fact as required under the Act,

the respondent can then be certain when the limitation period for the commencement of proceedings will expire, but that as long as

any further application lodged under s. 11 is under consideration by PIAB that period would again be suspended by reason of s. 50 of

the Act. It is submitted that such uncertainty cannot have been within the contemplation of the Oireachtas given the nature of the

new procedures being provided for under the Act, and the clear aim pursued by the legislation to speed up and simplify the resolution

of personal injury claims, thereby reducing the delays and level of litigation costs which had become the focus of so much public

attention and adverse criticism. It follows in its submission that once PIAB has issued an authorisation it has exhausted its function

and is thereafter functus officio and may not issue a further authorisation.

Functus officio

23. NR has referred to certain authorities which in its view confirm the position in relation to PIAB being ‘functus officio’ following the

issue of its authorisation, save in the very limited and clearly defined circumstances specified in other provisions of the Act, and

which are not relevant to the facts of this case. In so far as the notice party is submitting that there is nothing in the legislation that

bars the bringing of a second application under s. 11, NR responds that the question is, rather, whether there is anything within the

Act which permits PIAB to entertain a second application.

24. Counsel has referred to a passage from Hogan & Morgan: Administrative Law in Ireland, 4th ed. Round Hall where at para. 19-132

within a chapter dealing with ‘Res Judicata and Functus Officio’ the learned authors state:

“The res judicata doctrine must not be confused with a situation where the decision-taker has become functus officio. If

a public authority has statutory power to determine some question its decision will generally be final and irrevocable.

This is not because of the operation of res judicata, but rather because the authority lacks jurisdiction to alter its

original decision and has become functus officio.”

25. Two cases are referred to by the authors in a footnote to the above passage, and have been referred to on this appeal, namely

In Re 56, Denton Road, Twickenham [1953] 1 Ch. 51, and Re Lynham’s Estate [1928] I.R. 127. NR has relied upon the judgment of

Vaisey J. in In Re 56 Denton Road. That was a case which arose from damage to a house in London which was inflicted by enemy

bombing towards the end of 1940. The War Damage Commission was established by statute and one of its functions was to pay

compensation to owners of property so damaged . The amount of damage depended upon the classification of the property as either

a total loss or not a total loss. In the latter case compensation was paid on the basis of the cost of works. The Commission’s first

‘preliminary’ classification of Number 56 Denton Road was as a total loss. However upon receipt of additional information this was

revised to ‘not a total loss’. That reclassification was accepted by the plaintiff. However, without further reference to the plaintiff the

Commission made a fresh decision to revert to the ‘total loss’ classification, and so notified the plaintiff. Proceedings issued in which

the plaintiff sought a declaration that on a true construction of the Act and of the letter that had notified the ‘not a total loss’

decision, the Commission had determined or must be deemed to have finally and irrevocably determined that the damage to the house

was one where a cost of works payment would be made i.e. ‘not a total loss’, and that the Commission could not resile from that

decision and make a different decision. Vaisey J. accepted the plaintiff’s submission that where Parliament had conferred upon a body

such as the War Damage Commission the duty of deciding any question, the deciding of which affected the rights of the subject,

such a decision, made and communicated in terms which are not expressly preliminary or provisional, is final and conclusive, and

cannot in the absence of express power or the consent of the person affected be altered or withdrawn by that body. He considered

that if the position was found to be otherwise it “would introduce a lamentable measure of uncertainty, and so much disturbance in

the minds of those unfortunate persons who have suffered war damage that the Act cannot have contemplated the possibility of

such vacillations as are claimed to be permissible in such a case as the present.” It appears from the judgment that the reason for

the change in the decision back to one of total loss arose because the owner of the adjoining house, number 58, upon hearing that

number 56 had been classified as ‘not a total loss’ wanted his damaged house to be treated in like manner. It was this which caused

the re-think on the part of the Commission in relation to the plaintiff’s house.

26. At any rate, NR seeks support from that judgment for its submission that an administrative body once it has performed its function

under the relevant Act and has made its decision, cannot thereafter make another decision on the same question, and lacks the

necessary vires to do so, as in the present case. Counsel for the notice party submits that the question of how a damaged house is

classified for the purpose of compensation is an entirely different and less important decision than one as in the present case whereby

a person is being enabled to access his constitutional right to justice.

27. As for Re Lynham’s Estate, counsel for the notice party looks to it for support, and submits that in so far as the President

grounded his analysis upon English authority it is distinguishable on the basis that none of those authorities deal with the ouster of

the jurisdiction of the courts to hear and determine an action for personal injuries, being a jurisdiction founded upon the Constitution.

It is submitted that Re Lynham’s Estate supports the notice party’s argument in this regard, so that this Court should not consider

the decision of PIAB to issue an authorisation to be comparable to a decision of, say, an Immigration Appeals Tribunal or an

Employment Appeals Tribunal where rights are determined, and where often the parties are legally represented and where there exists

a right of appeal.

28. I cannot agree that Re Lynham’s Estate can be relied upon in support of the notice party’s submissions. The facts are difficult

and somewhat convoluted and thankfully it is unnecessary to attempt a summary. But 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. In the present case it cannot be sensibly argued, and indeed it was not, that the first

authorisation was provisional in nature so that it could be re-visited upon the lodgement of a second application. I think the

judgments in the Supreme Court in Re Lynham’s Estate are not on point at all.

Reliance on s. 46 and the absence of any provision excluding a second application:

29. The President concluded that there were no facts in the present case which could bring it within s. 46 of the Act, and particularly

within subsection (3)(b) which permits an authorisation where some genuine oversight or ignorance of all the facts led to an applicant

not naming a party as a respondent to the claim, and where the claimant is not otherwise authorised under the Act to bring

proceedings. The notice party on this appeal refers to the fact that s. 46 enables rules to be made by the Board concerning the

procedure to be followed in relation to, inter alia, the making of an application for an assessment under s. 11, and that while it could

have therefore included within the rules made some provision which made it clear that only a single application under s. 11 could be

lodged in respect of the same injury to an applicant, it has not done so. It is urged upon this Court that it should therefore consider

that the possibility of a second application has not been excluded, and therefore that the Board is not without a power to grant a

second authorisation if it receives a second application.

30. Counsel for NR has submitted that where s. 46 has expressly provided for rules to be made enabling the Board to issue a second

authorisation in certain very limited circumstances not applicable in the present case, the category of such circumstances should be

seen as closed, and the absence of any reference to any other particular circumstances should not be interpreted as leaving open

sub silentio the possibility of making rules which would enable the issue of a second authorisation in a case such as the present one.

Conclusions

31. I am satisfied 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, for example in the circumstances provided for in s. 18 of the Act, and reflected in

Rule 6 and Rule 7 of the Personal Injury Assessment Board Rules 2004 (S.I. No. 219 of 2004).

32. An authorisation granted provides the mechanism by which the applicant may access justice by the issue of a personal injury

summons. He/she is not obliged to do so on foot of such an authorisation, but may do so provided that he/she does so within the

time limits provided by a combination of s. 3 of the Statute of Limitations (Amendment) Act, 1991 as amended, and s. 50 of the PIAB

Act. As with any other type of proceedings a plaintiff is subject to a limitation period within which he must commence his/her

proceedings, otherwise he loses his right to litigate that cause of action. The constitutional right of access to justice is subject to

such constraint.

33. In this case the notice party was issued with an authorisation on the 16th March 2011 which entitled him to commence

proceedings to recover damages against, inter alia, NR. He did not do so on foot of that authorisation. That authorisation issued to

Michael Chapwanya which is the name used by the notice party on his first application for an assessment of his damages. He does not

dispute that this name refers to him, and therefore the person who was injured in the alleged work place incident on the 23rd October

2009.

34. By the time the notice party issued his personal injury summons on the 30th July 2013, the two year limitation period had expired

if it is calculated, having regard to s. 50 of the PIAB Act, by reference to the date on which the first application was lodged and the

date on which the first authorisation issued on the 16th March 2011.

35. No explanation has been provided as to why having received his first authorisation he did not commence proceedings within the

required period thereafter. But the fact is that he did not, and perhaps any reason that may exist as to why he did not do so, would

be irrelevant to the issue on this appeal, which is whether or not the second authorisation issued on the 25th July 2013 is a valid

authorisation. I note in passing that the personal injury summons which was issued by his solicitor on the 30th July 2013 does not

contain the details of the relevant authorisation which normally appears endorsed on the summons. Nothing turns on that.

36. Neither has there been any explanation for why the second application for an assessment which was received by PIAB only on the

5th October 2011 (i.e. some six and a half months after the first authorisation issued) is on its face dated 5th March 2011. It is

accepted by all parties that it was only received on the 5th October 2011, and that is the only relevant date. It is not correct for the

notice party to state therefore that his second application was made prior to the issue of the first authorisation. Other issues might

arise if the application was actually received by PIAB before it issued its first authorisation. For example, would a second application

received prior to a decision on the first application (be that an assessment or an authorisation) be considered to be in substitution for

the first application, or would it be construed as a withdrawal of the first application. If the latter, what then might be the

consequences for the applicant given the provisions of s. 47 of the Act which makes it clear that while a claimant may withdraw

his/her application prior to an assessment, such a claimant may not make any fresh application under s. 11 or commence proceedings.

Those particular issues do not arise on this appeal, but they do point to the fact that the legislative scheme provided for by the Act

is simple, clear, straightforward and workable if the statutory procedure is followed. There is nothing obscure about it. A claimant can

clearly see that if he wishes to claim damages for personal injuries he must lodge an application under s. 11 in the prescribed form,

and then await either an assessment of those damages or an authorisation enabling him to commence proceedings. In the case of the

latter, he can either do so or not as he chooses. There is nothing in the Act or the Regulations that foresees in any way an applicant

making a second application having received an authorisation upon which he has not acted by commencing the proceedings

authorised.

37. It is only where a claimant fails to follow these clear and straightforward procedures and then seeks to avoid the adverse

consequences of that failure, by contending for some strained interpretation of the statute, that difficulties of interpretation that are

more apparent than real arise for decision.

38. The issue on this appeal arises only because the notice party did not issue his proceedings having received his authorisation, and

instead lodged a fresh application as ‘Moro Issak aka Michael Chapwanya’, and nothing turns on that since PIAB dealt with it under

the same reference number and was therefore clearly aware that it was the same applicant in respect of the same claim in respect of

which it had already given an authorisation. He has contrived an unusual set of circumstances, unique perhaps and hopefully so,

where by reason of his own failure to act within the prescribed time period on foot of that first authorisation he now finds himself

hoist with a petard of his own making.

39. In my view there is nothing ambiguous about the provisions in question or the scheme generally. It is perfectly clear that just one

application in respect of a particular injury is capable of resulting in an assessment or an authorisation where no assessment is made.

Why, one might ask perhaps rhetorically, would it need it be otherwise, save in respect of which specific provision has already been

made as exemplified in s. 46 of the Act? I cannot think of any reason why the Oireachtas might have intended to leave open the

possibility of a second application in respect of the same injury and involving the same parties . If they had intended to do so, surely

they would have said so explicitly. That is the absurdity of the position contended for by the notice party, rather than the

implications which it would have for some unintended extension of the limitation period referred to by the President in his judgment,

though that aspect tends to militate also against the interpretation contended for.

40. Other absurd situations would arise if the notice party was correct. Let us suppose for a moment that some hypothetical claimant

lodges an application, and damages are assessed after the named respondent has given consent under s. 14 of the Act. Let us then

suppose that before those damages are actually paid our hypothetical claimant for some inconceivable reason lodges a second

application in respect of the same injury, what is to become of the assessment already made if the second application is permissible

under the scheme? There is nothing in the statutory scheme which provides that in such a circumstance the assessment is to be

seen as null and void or in some way cancelled. What therefore would be its status? What is the position therefore if having been

served with notice of the second application (before it has paid the damages on foot of the assessment already made) the same

respondent refused to consent to an assessment, perhaps on the basis that this has already been done, or for any other reason?

Does his first consent to assessment act as an estoppel to a refusal to give consent on the second application?

41. One can go on and on with examples of absurdities which would arise if the notice party is 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. In my view this just simply cannot be correct and would lead to chaos in a system whose very design and purpose

was to reduce complexity, delay and cost in relation to claims for damages in personal injury cases.

42. It is 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. In addition to any such legal fees incurred,

there is a significant fee payable to PIAB. Again, it is not reasonable to suppose that the Oireachtas intended that this expenditure

could be visited upon a respondent for a second time without saying so explicitly.

43. Quite apart from any absurdities that would result, the respondent who is notified by PIAB either that an assessment has been

made, or that an authorisation has been issued to enable proceedings to be commenced is entitled to retain the certainty thereby

provided. In the event of an assessment, certainty is achieved that the matter is at an end. In the event of an authorisation being

issued, the respondent knows the date by which proceedings must be issued, and if they are not the respondent knows that the

matter is at an end. All parties are entitled to justice, and part of that justice is that the respondent should know with reasonable

certainty when matters will be at an end, whatever that end may look like. The possibility for a second application has the capacity

to unnecessarily reduce that level of certainty. That itself points to the impossibility for success of the notice party’s submissions.

44. The objective of certainty and finality is 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. In my view that provision supports an interpretation which excludes an entitlement to lodge multiple

applications under s. 11, even though the section does not specifically so state. Further support for my conclusions can be gleaned

from s. 49 of the Act which imposes a duty upon PIAB to make assessments expeditiously and to take all steps to ensure as far as

practicable that no avoidable delays occur in the making of assessments.

45. 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.

46. It follows that I am 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 cannot issue another authorisation in respect of the commencement of

proceedings against NR. That second authorisation which issued on the 25th July 2013 is not lawful as against NR. In that limited

sense, PIAB is to be regarded as functus officio in the matter.

47. I am satisfied that a declaration as to the invalidity of the second authorisation in so far as it authorises the commencement of

proceedings against NR is warranted.

48. For all these reasons I consider that this appeal should be dismissed.