Personal Injuries Assessment Board Act 2003

PART 1 Preliminary and General

1. Short title.

1.—This Act may be cited as the Personal Injuries Assessment Board Act 2003.

2. Commencement.

2.—This Act comes into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

3. Civil actions to which Act applies.

3.—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,

F1[(aa) subject to Part 5 of the Act of 2022, a civil action against the Commissioner of the Garda Síochána to which that Act applies,]

(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).

3A. F2[Civil actions to which Act does not apply.

3A.—Notwithstandingsection 3, this Act does not apply to a civil action to which any of the following applies:

(a) the Warsaw Convention;

(b) the Montreal Convention;

(c) Council Regulation (EC) No. 2027/97;

(d) section 46(2) of theCivil Liability Act 1961;

(e) the Athens Convention;

(f) Regulation (EC) No. 392/2009;

(g) Part III of theMerchant Shipping (Liability of Shipowners and Others) Act 1996;

insofar as those statutory provisions are in force and insofar as those conventions and regulations are applicable to or in the State.]

4. Interpretation.

4.—(1) In this Act, unless the context otherwise requires—

“Act of 1961” means the Civil Liability Act 1961;

F3[“Act of 2022”means the Garda Síochána (Compensation) Act 2022;]

F4["Athens Convention" means the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, as amended by the Protocol of 2002 (the Athens Convention) and as amended from time to time;]

“Board” shall be construed in accordance with section 53;

“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) F5[…]

(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;

F6[“claimant”means a person who would, subject to this Act, be entitled to pursue a civil action to which this Act applies and includes—

(a) other than in a civil action referred to inparagraph (e), a personal representative in whom a cause of action comprising a civil action is vested by virtue of the Act of 1961,

(b) other than in a civil action referred to inparagraph (e), 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, and

(e) for the purposes of a civil action referred to insection 3(aa), an applicant within the meaning of the Act of 2022 in relation to whom an application to the Board referred to in section 19 of that Act was made;]

F4["Council Regulation (EC) No. 2027/97" means Council Regulation (EC) No. 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air, as amended by Regulation (EC) No. 889/2002^1and as amended from time to time;]

F3[“damages”includes compensation for the purposes of civil actions referred to insection 3(aa);]

“employee” means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment; and, for the purposes of this Act, a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act 1956) shall be deemed to be an employee employed by the State or Government, as the case may be, and an employee, officer or servant of a local authority for the purposes of the Local Government Act 2001 or of a harbour authority F7[or health board, or a member of staff of an education and training board] shall be deemed to be an employee employed by the authority F8[or board], as the case may be;

“employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

“health board” includes the Eastern Regional Health Authority and an area health board established under the Health (Eastern Regional Health Authority) Act 1999;

“Minister” means the Minister for Enterprise, Trade and Employment;

F4["Montreal Convention" means the Convention for the Unification of Certain Rules for International Carriage by Air, signed at Montreal on 28 May 1999 and as amended from time to time;]

“personal injury” has the same meaning as it has in the Act of 1961;

“proceedings” means proceedings in court;

F4["Regulation (EC) No. 392/2009"^2means Regulation (EC) No. 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents, as amended from time to time;]

F4["Warsaw Convention" means the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929, or the Warsaw Convention as amended—

(a) at The Hague on 28 September 1955,

(b) by the Convention supplementary to the Warsaw Convention done at Guadalajara on 18 September 1961, and

(c) as amended from time to time;]

“wrong” has the same meaning as it has in the Act of 1961.

(2) 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.

(3) In this Act “respondent”, where used without qualification, does not, unless expressly provided otherwise, include a non-participating respondent (within the meaning of section 15) or a nonaccepting respondent (within the meaning of section 34).

(4) References in subsequent provisions of this Act to a next friend or, as appropriate, a guardian, in relation to a claimant or a respondent, shall be construed as references to a person who would be entitled to act as a next friend or guardian of the claimant or respondent, as the case may be, were the relevant claim concerned to be the subject of proceedings.

(5) In this Act—

(a) a reference to a section or Part is a reference to a section or Part of this Act unless it is indicated that reference to some other enactment is intended,

(b) a reference to a Chapter is a reference to the Chapter of the Part in which the reference occurs, unless it is indicated that reference to some other provision is intended,

(c) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended, and

(d) a reference to any other enactment is a reference to that enactment as amended or extended by or under any subsequent enactment.

5. Regulations.

5.—(1) The Minister may make regulations in respect of anything referred to in this Act as being the subject of regulations or for the purpose of enabling this Act to have full effect.

(2) Every order (other than an order under section 2) and regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

(3) The Minister may by order amend or revoke an order under this Act (other than an order under section 2 but including an order under this subsection).

6. Savings.

6.—(1) Nothing in this Act affects proceedings brought before the commencement of this section.

(2) Subsection (1) is without prejudice to section 48 (which enables the Board, where rules under section 46 so provide, to make an assessment of a relevant claim, the subject of proceedings brought before the commencement of this section).

(3) Nothing in this Act prevents 2 or more persons from entering into a settlement in respect of a relevant claim.

(4) If—

(a) such a settlement is entered into after one or more steps under Part 2 have been taken in relation to the relevant claim, and

(b) the claimant and the respondent or, as the case may be, the claimant and each of the respondents are parties to the settlement,

the Board shall, on being informed in writing of the settlement, cause no further step under that Part to be taken in relation to the claim.

7. Obtaining of legal advice.

7.—(1) Nothing in this Act is to be read as affecting the right of any person to seek legal advice in respect of his or her relevant claim and no rule shall be made under section 46 that affects that right.

(2) Subsection (1) shall not be read as requiring any procedure to be followed by the Board or hearing to be conducted by it that would be required to be followed or conducted by a court were the relevant claim concerned to be the subject of proceedings.

8. Expenses.

8.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

PART 2 Mandatory Assessment Procedures in respect of Certain Civil Actions

Chapter 1

9. “Relevant claim”.

9.—In this Chapter “relevant claim” means a civil action to which this Act applies.

10. What this Chapter does.

10.—This Chapter—

(a) specifies certain procedures that must be employed by—

(i) every claimant who wishes to recover damages in respect of a relevant claim, and

(ii) the Board in consequence of those procedures having been employed by such a claimant,

and

(b) prohibits the bringing of proceedings in respect of such a claim unless specified conditions are satisfied.

11. Application for assessment.

11.—F9[(1) A claimant—

(a) shall make an application under this section to the Board for an assessment to be made undersection 20of his or her relevant claim, and

(b) may apply for resolution of his or her relevant claim by way of mediation underChapter 1A.]

(2) That application shall be in the form specified by rules under section 46 and be accompanied by such documents as may be so specified.

(3) Without prejudice to the generality of section 46 as regards the documents that may be specified for the foregoing purpose, the documents that may be specified for that purpose include—

(a) a document that has been given or sent, by or on behalf of the claimant, to the person or persons whom he or she believes to be liable to pay compensation to him or her in respect of the claim, notifying the person or persons of his or her relevant claim and seeking the payment of compensation,

(b) copies of any other correspondence between the claimant and that person or those persons in relation to the relevant claim,

F10[(ba) copies of any documentation concerning the identity of the claimant where such claimant does not have a personal public service number (within the meaning of section 262 of the Social Welfare Consolidation Act 2005),]

(c) a report prepared by a medical practitioner who has treated the claimant in respect of the personal injuries, the subject of the relevant claim, in relation to those injuries,

(d) receipts, vouchers or other documentary proof in relation to loss or damage in respect of which special damages are being sought in the relevant claim.

F10[(3A) Notwithstandingsubsection (2)and any rules undersection 46, an application under this section made on or after the commencement of section 3(c) of the Personal Injuries Resolution Board Act 2022 shall not be an application for the purposes ofsection 50, unless it is signed by the claimant and includes confirmation of each of the following:

(a) the claimant’s name, date of birth, phone number, and the address at which he or she ordinarily resides;

(b) the claimant’s personal public service number (within the meaning of section 262 of the Social Welfare Consolidation Act 2005) or, in any case where the claimant does not have a personal public service number, such other documentation concerning his or her identity as may be specified by rules undersection 46;

(c) the name and address of the person or each of the persons who the claimant alleges in the application is or are liable to him or her in respect of the accident or incident concerned;

(d) the date and time on which it is alleged that the accident or incident the subject of the application occurred;

(e) a description of how and where it is alleged that the accident or incident the subject of the application occurred;

(f) a description of the personal injuries allegedly sustained by the claimant in the accident or incident the subject of the application;

(g) that the medical report enclosed with the application describes the personal injuries allegedly sustained by the claimant in the accident or incident the subject of the application.]

(4) If an enactment or a rule of court (whether passed or made before or after the passing of this Act) requires notice of any accident or occurrence that has given rise to personal injuries being sustained by a person to be given, prior to a civil action being pursued in respect of those injuries, to the person or persons alleged to be responsible for them, then the reference in subsection (3) (a) to the document mentioned in that provision shall be construed as a reference to such a notice.

(5) When it appears to the Board, in circumstances where the presumption provided for by section 18 (presumption as to full capacity) is rebutted in relation to the applicant, that an applicant under this section is not of full capacity the Board shall not deal with the applicant's application (but without prejudice to its duty, subject to section 17, to deal with a fresh application subsequently made under this section on his or her behalf by a next friend or a committee of him or her).

12. Bar on bringing proceedings unless certain conditions are satisfied.

12.—(1) 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.

(2) Nothing in subsection (1) or any other provision of this Act is to be read as affecting the right of a claimant or a respondent to invoke, subject to and in accordance with this section, the jurisdiction of any court to make an order referred to in subsection (3) that could be made if proceedings, but for subsection (1), were to be brought or were about to be brought in respect of the relevant claim and the court shall, accordingly, have jurisdiction, subject to and in accordance with this section, to make such an order despite the enactment of subsection (1).

(3) The order mentioned in subsection (2) is any order of an interlocutory kind or power to make which is provided for by rules of court or otherwise inherent in the court's general jurisdiction in civil proceedings and, in particular, an order restraining the transfer of assets to a place outside the State for the purpose of defeating the rights of another arising out of the relevant claim or the dissipation of assets for that purpose and an order requiring evidence to be preserved.

(4) In relation to the invocation of the foregoing jurisdiction of the court the following provisions have effect—

(a) the application for the order concerned shall be made by motion on notice or, as appropriate, ex parte motion,

(b) without prejudice to the principles or rules that govern generally the exercise of that jurisdiction, the court shall not exercise that jurisdiction to make any order (not being an order relating to the transfer or dissipation of assets) unless it is satisfied that—

(i) the making of the application therefor is bona fide and for the sole purpose of ensuring the fair and just disposition of any proceedings that could be brought in the event of the issue of an authorisation referred to in subsection (1), and