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URL: http://www.bailii.org/ie/cases/IESC/2008/S32.html
Cite as: [2008] 2 ILRM 241, [2008] IESC 32, [2009] 1 IR 133

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Judgment Title: Campbell -v- O'Donnell & ors

Neutral Citation: [2008] IESC 32

Supreme Court Record Number: 335/05

High Court Record Number: 2005 1057P

Date of Delivery: 07 May 2008

Court: Supreme Court

Composition of Court: Hardiman J., Geoghegan J., Kearns J.

Judgment by: Kearns J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Kearns J.	Appeal dismissed - affirm High Court Order	Hardiman J., Geoghegan J.

Outcome: Dismiss

THE SUPREME COURT

Hardiman J.
Geoghegan J.
Kearns J.

[Record No. 2005/1057P]

BETWEEN

MICHAEL CAMPBELL

PLAINTIFF/APPELLANT

AND

PADRAIG O’DONNELL, GAVIN BOYLE & THE MOTOR INSURERS BUREAU OF IRELAND

DEFENDANTS

AND

THE MINISTER FOR TRANSPORT

NOTICE PARTY

JUDGMENT of Mr. Justice Kearns delivered the 7th day of May, 2008

These proceedings arise out of a motor accident which occurred on 31st July, 2002 when the plaintiff suffered personal injuries while travelling in a motor car which was struck by another motor car, the property of the first named defendant, which was driven on the occasion in question by the second named defendant. The plaintiff alleges that the second named defendant drove to the incorrect side of the road resulting in a head-on collision between the respective vehicles. The plaintiff seeks to have the first named defendant held vicariously liable for the negligence of the second named defendant pursuant to the provisions of s.118 of the Road Traffic Act, 1961. It is not in dispute that the plaintiff’s cause of action as against the first and second named defendants comes within the meaning of s.3(b) and s.4(1) of the Personal Injuries Assessment Board Act, 2003 (“the PIAB Act”), that is to say that it is a civil action pursued against those defendants for the recovery of damages for personal injuries in respect of a wrong and, as such, is subject to the procedures laid down in the Act of 2003, including assessment of damages by the Board established by that Act.
It is common case that the vehicle driven by the second named defendant was not covered at the time of the accident by an approved policy of insurance as required by the Road Traffic Act Code. In consequence the plaintiff also sued the Motor Insurers Bureau of Ireland (“M.I.B.I.”) pursuant to the provisions of an Agreement dated 21st December, 1988 between the Minister for the Environment on the one part and the M.I.B.I. of the other part. Against this defendant the plaintiff seeks a declaration that in the event of any judgment obtained by the plaintiff against the first and/or second named defendant remaining unsatisfied twenty-eight days after the same shall have been given, the plaintiff shall in those circumstances be entitled to recover the amount of such judgment against the third named defendant pursuant to the terms of the said agreement.
By defence delivered the 15th June, 2005 on behalf of the third named defendant, the third defendant raised a preliminary point of objection, namely, that the plaintiff was not entitled to issue proceedings against it without reference to the Personal Injuries Assessment Board. The third named defendant contends that as the plaintiff’s claim against the first and second named defendants is a civil action within the meaning of s.3 (b) of the PIAB Act or is otherwise an action coming within the meaning of s.3(d) of the said Act that the plaintiff’s claim in the first instance should and must be made to the Personal Injuries Assessment Board and that accordingly the proceedings herein are misconceived and invalid.
The PIAB Act of 2003 is described in its long title as:-

“An Act to enable, in certain situations, the making of assessments, without the need for legal proceedings to be brought in that behalf, of compensation for personal injuries (or both such injuries and property damage), in those situations to prohibit, in the interests of the common good, the bringing of legal proceedings unless any of the parties concerned decides not to accept the particular assessment or certain other circumstances apply, to provide for the enforcement of such an assessment, for those purposes to establish a body to be known as the Personal Injuries Assessment Board and to define its functions and to provide for related matters”.

Section 3 of the Act provides:-
“This Act applies to the following civil actions—

(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,

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

(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,

(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).”

Section 12(1) of the PIAB Act provides, inter alia:-

“Unless and until an application is made to the Board under section 11 in relation to the relevant claim and then only when the bringing of those proceedings is authorised under section 14, 17, 32 or 36, rules under section 46(3) or section 49 and subject to those sections or rules, no proceedings may be brought in respect of that claim.”

Section 4 of the PIAB Act provides, inter alia, that:-

“ ‘‘civil action’’ means an action intended to be pursued for the purpose of recovering damages, in respect of a wrong, for—

(a) personal injuries, or

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

but does not include—

(i) an action intended to be pursued in which, in addition to damages for the foregoing matters, it is bona fide 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,

(ii) an application for compensation intended to be made under the Garda Síochána (Compensation) Acts 1941 and 1945,

(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,

(iv) an action intended to be pursued under section 3 of the European Convention on Human Rights Act 2003.”

Section 4(1) also provides that “personal injury” has the same meaning as it has in the Civil Liability Act, 1961, “proceedings” means proceedings in court, “wrong” has the same meaning as it has in the Civil Liability Act, 1961; “claimant” is a person who would be entitled to pursue a civil action to which the PIAB Act applies and includes:-

“(a) a personal representative in whom a cause of action comprising a civil action is vested by virtue of the Act of 1961,

(b) a person specified in subsection (3) of section 48 of the Act of 1961 who would, subject to this Act, be entitled to pursue an action for damages under that section,

(c) a person who would be entitled to act as a next friend of a minor or a person of unsound mind were a civil action to which this Act applies to be pursued on his or her behalf,

(d) the committee of a person of unsound mind acting on his or her behalf in relation to a civil action to which this Act applies that is proposed to be pursued.”

Section 4(2) of the PIAB Act provides:-

“For the purposes of the definition of ‘‘civil action’’ in subsection

(1) ‘‘action’’—

(a) includes an action the cause of action comprising which accrued before the passing of this Act, and

(b) shall be deemed to include an action intended to be pursued for damages under section 48 of the Act of 1961.”

THE MOTOR INSURERS BUREAU AGREEMENT
It is common case that the plaintiff’s claim against the third named defendant is governed by the terms of the 1988 Motor Insurers Bureau Agreement (“The 1988 Agreement”), the accident having occurred on the 31st July, 2002.
Clause 2 of the 1988 Agreement provides:-

“M.I.B. of 1. hereby agrees that a person claiming compensation (hereinafter referred to as "the claimant") may seek to enforce the provisions of this Agreement by-

(1) making a claim to M.I.B. of 1. for compensation which may be settled with or without admission of liability, or

(2) citing as co-defendants M.I.B. of 1. in any proceedings against the owner or user of the vehicle giving rise to the claim except where the owner and user of the vehicle remain unidentified or untraced, or

(3) citing M.I.B. of 1. as sole defendant where the claimant is seeking a court order for the performance of the Agreement by M.I.B. of 1. provided the claimant has first applied for compensation to M.I.B. of 1. under Sub-clause (1) of this Clause, and has either been refused compensation by M.I.B. of 1. or has been offered compensation by M.I.B. of 1. which the claimant considers to be inadequate.”

Clause 4(1) of the Agreement provides:-

“Subject to the provisions of Sub-clause (2) of this Clause, if Judgment in respect of any liability for injury to person or damage to property which is required to be covered by an approved policy of insurance under Section 56 of the Act is obtained against any person or persons in any court established under the Courts (Establishment and Constitution) Act, 1961 (No. 38 of 1961) whether or not such person or persons be in fact covered by an approved policy of insurance and any such judgment is not satisfied in full within 28 days from the date upon which the person or persons in whose favour such judgment is given become entitled to enforce it then M.I.B. of I. will so far as such judgment relates to injury to person or damage to property and subject to the provisions of these presents pay or cause to be paid to the person or persons in whose favour such judgment was given any sum payable or remaining payable thereunder in respect of the aforesaid liability including taxed costs (or such proportion thereof as is attributable to the relevant liability) or satisfy or cause to be satisfied such judgment whatever may be the cause of the failure of the judgment debtor to satisfy the same.”

Clause 4(3) provides:-

“Where a person applies to the M.I.B. of I. for compensation and no judgment has been obtained or is obtainable, M.I.B. of 1. shall, as soon as is reasonably practicable, give a decision on the application and shall give reasons for the decision.”

Clause 6 of the Agreement provides:-

“In the case of an accident occurring on or after the 31st day of December, 1988, the liability of M.I.B. of 1. shall extend to the payment of compensation for the personal injury or death of any person caused by the negligent driving of a vehicle in a public place, where the owner or user of the vehicle remains unidentified or untraced.”

The 1988 Agreement is the agreement which is relevant to the present action. The said agreement was superseded by the Agreement of May, 2004, though the provisions cited above have been fully incorporated with some very small alterations in the new agreement.

JUDGMENT OF THE HIGH COURT
The plaintiff sought the trial of an issue as to whether or not the proceedings were maintainable without it being necessary to make the reference to the Personal Injuries Assessment Board under the PIAB Act. The plaintiff contended and still contends that actions against the Bureau to obtain the benefit of the obligations as set out aforesaid and as undertaken by the Bureau in its agreement are not covered by the provisions of the PIAB Act. The issue came before the High Court (Finnegan P.) on 12th and 13th July, 2005. In his judgment delivered on 26th July, 2005 the learned President found that the plaintiff was not entitled to issue proceedings herein without the authorisation of the Personal Injuries Assessment Board.
In the course of his judgment, Finnegan P. noted that the Minister for Transport had applied to be joined as a Notice Party and had been so joined with the consent of the parties. Counsel on behalf of the Minister adopted the same arguments which were advanced on behalf of the Bureau.
In resolving the issues before him, Finnegan P. had regard to the long title of the PIAB Act, noting that the legislative intention was to prohibit the bringing of legal proceedings in respect of claims for compensation for personal injuries without first going through the procedures involving the Personal Injuries Assessment Board as established by the Act.
He began by considering the definition of “civil action” in the PIAB Act. An action against a wrongdoer within the definition of a wrong contained in the Act comes within the ordinary meaning of the phrase “for the purpose of recovering damages in respect of a wrong”, whereas the intention of an action against the Bureau is not to obtain an award of damages but rather to compel the Bureau to honour for the benefit of a successful plaintiff the agreement entered into with the Minister. However, giving effect to the word “recovering”, Finnegan P. took the view that it could fairly be said that the intention of the action is to recover from the Bureau the award of damages obtained against the wrongdoer. The effect is to place the injured party in substantially the same position as if the wrongdoer was insured and the Bureau was taking the place of the insurer. Further, giving effect to the phrase “in respect of a wrong”, he was satisfied that the claim against the M.I.B.I. was in respect of a wrong and that the statutory definition did not require that the only amenable party should be the actual wrongdoer. Adopting what he described as “a purposive approach” he held that the action against the Bureau was a civil action within s.4 of the PIAB Act. While not an action for damages it is an action to recover damages and in respect of damages.
He then considered the plaintiff’s submission that the action came within the exception at s.4(1)(i) of the PIAB Act, which excludes actions where some claim in addition to a claim for damages is put forward in respect of any other cause of action. He concluded that the cause of action against the uninsured defendants lay in negligence. Strictly speaking, there was no cause of action against the Bureau as the law does not confer upon a non-party a right to sue upon a contract. At p.15 of his judgment he stated:-

“However it is the negligence of the uninsured defendants that triggers the proceedings and without which act the proceedings could not be maintained even with the concession invariably made by the Bureau that an action is maintainable against it. For this reason I take the view that the cause of action against the Bureau is the same as that against the uninsured defendants. While the relief claimed may be a declaration or specific performance in terms of pleading, the intention of joining the Bureau in an action is to recover damages for negligence awarded against uninsured defendants. Accordingly the action does not come within the exception at section 4(1)(i).”

He thus concluded that the action against the Bureau came within s.3(d) and was a civil action to which the Act applied.
In the course of his judgment he also noted that had it been the intention of the legislature to exclude actions in which the Bureau was involved that one would expect such an exclusion to be expressly provided by the terms of the legislation.

DECISION
I would commence with a few general observations. Firstly, counsel for the plaintiff has not disputed the fact that any claims the plaintiff may have against the first and second named defendants are claims to which the PIAB Act applies. Thus an interpretation of the statutory provisions which results in the exclusion of claims involving the M.I.B.I. from the scope of the Act would mean that separate assessments arising from same accident would require to be made by the Board and by the courts. This would be a highly anomalous situation in itself.
Secondly, the Act plainly envisages that proceedings before the Board should be inter partes. Given that a proportion of uninsured drivers – and in the case of untraced drivers, all of same – will not take part in an assessment before the Board the interpretation arrived at by the President permits the Bureau to be involved at the assessment stage before the Board in a manner consistent with the legislative intention of enabling assessments to be made without the requirement of legal proceedings for compensation for personal injuries. Thirdly, the PIAB Act did not purport to exclude claims against the M.I.B.I. from its application.
These general considerations aside, the outcome of this appeal necessarily turns on basic issues of statutory interpretation.
The civil actions to which the Act applies are set out in Section 3. As already noted, it is not in dispute that the proceedings against the owner and driver of the motor vehicle are captured by s.3(b) of the Act. Proceedings against the M.I.B. are clearly captured by s.3(d) of the Act by what might be described as the residuary clause contained in the section, i.e. “a civil action not falling within any of the preceding paragraphs …”.
The first major bone of contention arises when one comes to consider what is meant by “civil action” in Section 4. On behalf of the plaintiff, it is submitted that the present claim against the M.I.B. is not a civil action as defined by s.4 because, firstly, it is not an action pursued for the purpose of recovering damages, nor is the M.I.B. a wrongdoer in respect of the personal injuries and damage suffered by the plaintiff. On behalf of the M.I.B. it is submitted that proceedings brought against the M.I.B. under Clause 2 of the 1988 Agreement are proceedings brought to recover (i.e. obtain payment of) damages for the personal injuries caused by the wrongful act or omission of another party, in this case the first and second named defendants. In this context, Mr Patrick Connolly, S.C., on behalf of the Bureau, accepted that the Bureau is not a wrongdoer but submitted that this was nihil ad rem in the construction of the definition. Factually, the plaintiff in the first instance sets out to establish that his injuries were caused by the wrong of the first and second named defendants, directly or vicariously. He then has damages for these injuries assessed as against these defendants. These are damages “for the wrong”. He placed particular emphasis on the fact that the phrase used in the definition is not “for a wrong” but “in respect of a wrong” and the phrase “in respect of” was clearly of wider nature than the phrase “for” so that its use is appropriate to the recovery of damages from a non-wrongdoer, i.e. the Bureau in the present instance. Mr. Connolly further submitted that attempts on behalf of the plaintiff to draw some distinction between the word “compensation” as opposed to the word “damages” so as to suggest that the proceedings against the Bureau do not fall within the definition of “civil action” were misconceived.
Firstly, I am satisfied that no meaningful distinction is to be drawn between the use of the word “compensation” and the word “damages” in the section. While historically the words “damages” and “compensation” may have had different meanings, it is clear from a perusal of the Act as a whole that the words “damages” and “compensation” are used interchangeably. The word “compensation” appears in the long title, whereas, when talking of the same thing, various provisions in the Act refer to “damages”.
In so far as the second limb of the argument is concerned, I am also satisfied that the proceedings brought against the Bureau are proceedings brought for the purpose of recovering damages “in respect of a wrong”.
The fact that the phrase “in respect of” is one of wide application may be seen from the case of Patterson v. Chadwick [1974] 2 All E.R. 722. This was a case where a solicitor had been instructed to take proceedings on behalf of a plaintiff for damages for personal injuries sustained as a result of treatment in hospital. The solicitor failed to institute the proceedings in time and the plaintiff in the action sued the solicitor in negligence and sought discovery of the medical records and other documents relating to her injury. The defendant contested the application on the grounds that within the relevant section of an Act in the United Kingdom the proceedings against the solicitor were not a claim being made “in respect of personal injuries”. The English High Court (Boreham J.) held as follows:-

“The words “in respect of” in Section 32(1) were words of the widest import signifying some connection or relation between the two subject matters referred to. Since the nature and extent of the plaintiff’s personal injuries formed an essential ingredient in the proof of her claim against the solicitors, there was a clear connection or relation between the claim and the personal injuries. It followed therefore that the plaintiff was a party to the proceedings in which a claim was being made in respect of personal injuries and accordingly the appeal would be dismissed”.

In adopting this approach, the judge at p.775 of the report expressly followed a dictum of Mann C.J. sitting in the Supreme Court of Victoria in the case of Trustees, Executives and Agency Company Limited v. Reilly [1941] VLR p.110 to the following effect:-

“The words “in respect of” are difficult of definition but they have the widest possible meaning of an expression intended to convey some connection or relation between the two subject matters to which the words refer”.

I believe the approach adopted by the plaintiff is fundamentally misconceived in this case. There is no cause of action properly so called as between the plaintiff and the Bureau. As far as the Bureau is concerned, the plaintiff enjoys no privity with that body, but is merely the beneficiary of an agreement made between the Insurance Industry and the Minister. Any cause of action arising in the plaintiff is purely a derivative cause of action which enables a plaintiff recover the amount of damages or compensation to which he is found entitled as against the wrongdoers, in this case the first and second named defendants. I think it is quite clear that such a claim is not excluded by the express terminology in which “civil action” is defined at s.4(1) of the Act.
However, counsel on behalf of the plaintiff adopted a fall-back position. If the present proceedings against the Bureau could be seen as a civil action pursued for the purpose of recovering damages in respect of a wrong in so far as the Bureau was concerned, counsel argued that the action was nonetheless excluded by virtue of s.4(1)(i) which expressly excludes from the Act:-

“An action intended to be pursued in which, in addition to damages for the foregoing matters it is bona fide 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”.

Counsel has argued that the plaintiff in the instant case is effectively seeking “other relief”, because his claim includes an order for the performance of an agreement and other declaratory relief.
I also believe this contention to be misconceived. The plaintiff in the present proceedings is not claiming what might be described as “other damages or other relief”, in respect of any other cause of action, he is simply bringing proceedings to recover the amount of damages to which he is entitled in respect of the wrong perpetrated by the first and second named defendants. It is not an altogether different claim in respect of some other cause of action which has some independent existence apart from the claim against the owner and driver of the motor vehicle. It is clearly not relief sought in a new, separate or ‘stand-alone’ cause of action.
I agree with the reasoning of the learned trial judge that it is the negligence of the uninsured defendants that triggers the proceedings and without which act the proceedings could not be maintained even with the concession invariably made by the Bureau that an action is maintainable against it. Like him, I take the view that the cause of action against the Bureau is the same as that against the uninsured defendants. While the relief claimed may be a declaration or specific performance in terms of pleading, the intention of joining the Bureau in an action is to recover damages for negligence which may be awarded against uninsured defendants and nothing else. I am satisfied therefore that the action does not come within the exception at Section 4(1)(i).
In all those circumstances I would dismiss the appeal.