Dunne (A Minor) v Stapleton [2020] IEHC 1 (13 January 2020)

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JUDGMENT of Mr. Justice Garrett Simons delivered on 13 January 2020

1. This matter comes before the High Court by way of an application for a ruling in respect

of the adequacy of an assessment made by the Personal Injuries Assessment Board. The

Applicant herein sustained personal injuries in a road traffic accident in September 2017.

I will refer to the Applicant hereinafter as the “Injured Party”. The Injured Party will not

reach the age of majority, i.e. 18 years of age, until November 2020. The fact that the

plaintiff is a “minor” has the legal consequence that any claim for damages arising out of

the personal injuries is subject to specific procedural requirements. In particular, the

approval of the court is required in respect of any proposed compromise (to use a neutral

2. As a result of amendments introduced under the Personal Injuries Assessment Board Act

2003 (“the PIAB Act”), personal injuries proceedings cannot normally be brought without

the prior authorisation of the Personal Injuries Assessment Board (“PIAB”). It is a

necessary first step, therefore, for a claimant to apply to PIAB for an assessment of

damages. The assessment is then notified to the claimant and the respondent, i.e. the

party alleged to have caused the personal injuries. The legislation provides for two

(i). If either the claimant or respondent rejects the assessment, then PIAB will issue

an authorisation which authorises the claimant to institute legal proceedings.

(ii). If the claimant and respondent both accept the assessment, then the assessment

becomes enforceable as an “order to pay”. The payment of the amount specified

in an order to pay constitutes a “satisfaction” of the claimant’s personal injuries

claim. In the case of a claimant who is a minor, an additional procedural

requirement must be complied with as follows. An application must be made to

the appropriate court for approval of the acceptance of the assessment.

3. The unusual feature of the present case is that the position of the Injured Party changed

during the process. The Injured Party, through her mother and next friend, had initially

indicated that she intended to accept PIAB’s assessment. PIAB acknowledged receipt of

this acceptance of the assessment by letter dated 24 October 2018. This letter concludes

by indicating that PIAB’s involvement in the matter was now complete and that it was

closing its file. The only outstanding matter at that stage was an application for court

4. It seems that thereafter the next friend sought additional legal advice, and an opinion was

obtained from counsel in relation to the value of the personal injuries claim. Counsel

suggested that further medical reports be obtained in respect of the injury which the

5. The upshot of all of this was that by the time the matter came before the High Court for

ruling on 29 July 2019, the next friend’s application was to have the assessment rejected.

Put shortly, the High Court was invited to reject an assessment which the next friend

herself had previously accepted on behalf of the Injured Party. Given the unusual nature

of the application, I directed that a further affidavit be filed explaining the precise

circumstances in which this change of position came about. A detailed affidavit on behalf

of the solicitor who represents the Injured Party on the instructions of the next friend has

since been filed. The matter was then listed for further submissions on 21 October 2019.

6. The application for a ruling had initially been grounded on a single affidavit, which had

been sworn by the Injured Party’s mother and next friend. This affidavit sets out the

circumstances of the road traffic accident. The affidavit indicates that, in the days that

followed the accident, the Injured Party complained of ongoing pain and discomfort in her

neck and in her left ankle. It is a concern in relation to the latter injury to her ankle that

has prompted the change in position in respect of the acceptance of the PIAB assessment.

7. It appears from the medical reports exhibited that, as of February 2018, the prognosis

was that the Injured Party’s Condition should gradually improve over the next twelve to

eighteen months. See, in particular, the medical report of Dr Brian O’Dea dated 7

“Impression & Prognosis: This fifteen year old girl sustained significant neck

muscle spasm and pain as a result of a road traffic accident in September 2017.

She did not have any of these neck pain symptoms prior to the accident. She

appears to be making a gradual good recovery from her soft tissue neck injuries.

My clinical impression is that her condition should gradually improve over the next

8. PIAB has assessed general damages in the sum of €20,000 (together with a sum of

€1,187 in respect of special damages, i.e. losses and expenses incurred, and fees and

9. The affidavit indicates that the next friend had instructed her solicitor to accept the PIAB

assessment. Some, but not all, of the relevant correspondence has been exhibited in this

regard. It is explained that “as a matter of precaution” papers were subsequently sent to

junior counsel for an opinion in relation to the value of the claim. The relevant opinion

has been exhibited. Counsel advised that in circumstances where the mother had

expressed a concern that the Injured Party’s ankle is now weaker than before the

accident, and that this results in residual symptoms following sporting activity, a report

should be sought from a consultant orthopaedic surgeon in relation to the ongoing

10. Two such reports were subsequently obtained on 6 February 2019, and 20 March 2019,

respectively. In brief, these reports indicated that a surgical intervention might be

required. The position is summarised as follows by the consultant orthopaedic surgeon in

“I have reviewed the claimant’s MRI scan left ankle dated 6th March 2019. Her

peroneal tendons are intact. I see no evidence of peroneal tendon pathology.

The osteochondral surface of the tibiotalar, subtalar and transverse tarsal joints

are intact. The Achilles tendon and planter fascia are intact. I do not see

evidence of attenuation of the lateral ankle complex (ATFL) anterior talofibular

ligament which is consistent with her instability. While the majority of ankle

instability can be addressed through aggressive physiotherapy, peroneal

strengthening, proprioceptive and balance exercises, a small proportion require

surgical intervention (a Brostrom lateral ligament reconstruction). The decision

surgically is determined by instability (frequency of episodes and impact on day-

to-day activities and recreational sporting activities) and is a personal one. The

11. A supplemental affidavit has since been filed by the solicitor acting on behalf of the

Injured Party on the instructions of the next friend. This affidavit was filed on 1 October

2019. It sets out a fuller chronology in respect of the dealings between the solicitors and

(a) a next friend or the committee of a minor or a person of unsound mind is

acting on behalf of the minor or person in respect of the claim, or

(b) the claim relates to a proposed action for damages under section 48 of the

and the next friend, committee or, as the case may be, the person proposing to

bring that action for damages accepts, subject to the assessment being approved

under this section, the assessment made under section 20 of the relevant claim.*

(2) Where any enactment or rule of court requires any settlement of a relevant claim

to which this section applies to be approved by the court then that enactment or

rule of court shall apply, with the necessary modifications, to the assessment

referred to in subsection (1) as if proceedings had been brought in relation to the

claim, and the court shall have jurisdiction to approve the assessment accordingly

on application in that behalf being made by the next friend, committee or other

(3) The court shall order that the costs of such an application by the applicant shall be

(4) Unless and until an assessment of a relevant claim to which this section applies

has been approved by the court, the assessment, despite section 33 , shall not

become binding on the claimant and the respondent or respondents.

(5) In this section “court” means the court which has jurisdiction to make an award of

damages of the amount of the assessment the subject of the application for

approval or, if 2 or more courts have jurisdiction to make such an award,

whichever of them possesses the lesser or the least jurisdiction to make an award

13. Section 33 provides inter alia that an assessment which has been accepted by a claimant

will normally be binding on them. This is subject to the requirement for the approval of

14. Order 22, rule 10(11) of the Rules of the Superior Courts (as inserted by S.I. No. 517 of

In the case of applications for the approval by the Court of an assessment under

section 35(2) of the Personal Injuries Assessment Board Act 2003 (in this sub-rule

hereinafter referred to as “the 2003 Act”), the following procedure shall apply:

(a) An application for the approval of the Court shall be made by motion ex parte

by the next friend, committee or other person referred to in section 35(1) of

(d) When approving such an assessment the Court may appoint a person of full

age to act as next friend of the minor or, where appropriate, of the person of

(e) Where applicable, the provisions of Order 22, rule 10(3) to (6) and rule 11

shall apply mutatis mutandis to assessments made in favour of minors or

persons of unsound mind approved in accordance with this sub-rule in

respect of the amount recoverable in accordance with section 38 of the 2003

(f) The Registrar shall send by ordinary prepaid post or by e-mail to the Personal

Injuries Assessment Board a certified copy of any order made pursuant to

(g) In the event of an order to pay issuing in accordance with section 38 of the

2003 Act, a copy thereof shall be sent forthwith by the Personal Injuries

Assessment Board to the Registrar in the Central Office by ordinary prepaid

15. This application for a ruling in respect of the PIAB assessment comes before the court in

the very unusual circumstances where the Injured Party, having initially accepted the

assessment of €20,000 (plus special damages and fees and expenses) through her next

friend, now requests the court to reject the self-same assessment.

16. The first question which arises for consideration is whether the prior acceptance of the

assessment gives rise to a form of estoppel whereby the Injured Party is precluded from

disavowing same. The answer to this question is provided by subsection 35(4) (set out in

full at paragraph 12 above). This subsection states that an assessment shall not become

binding on a claimant unless and until approved by the court. Thus, notwithstanding

section 33—which provides that an assessment which has been accepted will normally be

binding—a minor will not be bound by an assessment accepted on their behalf by their

next friend unless and until the assessment is subsequently approved by the appropriate

17. The next question to be considered, then, is whether the application has been brought

before the appropriate court. More specifically, it is necessary to consider whether the

application should have been made to the Circuit Court or to the High Court. The

allocation of jurisdiction is governed by section 35(5) of the PIAB Act as follows.

(5) In this section “court” means the court which has jurisdiction to make an award of

damages of the amount of the assessment the subject of the application for

approval or, if 2 or more courts have jurisdiction to make such an award,

whichever of them possesses the lesser or the least jurisdiction to make an award

18. The key criterion for determining the court to which an application for approval should be

made is the “amount of the assessment”. More specifically, the application for a ruling is

to be made to the court which has monetary jurisdiction to make an award of damages of

the amount of the assessment made by PIAB. On the facts of the present case, the

application for approval should have been made to the Circuit Court as the amount of the

assessment (€21,187) falls within the monetary jurisdiction of that court in personal

injuries proceedings (€60,000). Whereas the High Court has concurrent jurisdiction to

make awards of less than €60,000, it is expressly provided under section 35(5) that the

application should be made in whichever court possesses the lesser or the least

19. Although not explained on affidavit, the reason the application has, instead, been made in

the High Court is, presumably, that the next friend envisages that any award of damages

would exceed €60,000, and would thus go beyond the monetary jurisdiction of the Circuit

Court in personal injuries actions. I will have something to say about this at paragraph

23 below, but for the purposes of the procedural issue now under consideration, the point

is that it is the monetary value of PIAB’s assessment which alone determines the court to

which the application for a ruling should be made. Strictly speaking, therefore, the

application for a ruling in the present case should not have been brought before the High

Court. However, in order to avoid putting the Injured Party to the time and trouble of

making a fresh application to the Circuit Court, I propose to take the very unusual step of

accepting jurisdiction in this case. I propose to do so on the basis of the High Court’s

10.(1) In any cause or matter in which money or damages is or are claimed by or on

behalf of an infant or a person of unsound mind suing either alone or in

conjunction with other parties, no settlement or compromise or payment or

acceptance of money paid into Court, either before or at or after trial, shall, as

regards the claims of any such infant or person of unsound mind, be valid without

20. As explained under the next heading below, there will be certain costs implications as a

21. I turn next to consider the question of whether, on the particular facts of the case, the

assessment of €20,000 (plus special damages and fees and expenses) should be

approved. I am satisfied, having regard to the two reports of the consultant orthopaedic

surgeon described at paragraph 10 above, that the assessment does not reflect the full

value of the claim. More specifically, it seems to me that the ongoing difficulties in

relation to the Injured Party’s left ankle would justify a higher award were the matter to

proceed to trial. It is evident from the more up-to-date medical reports that the injury to

her left ankle continues to affect the Injured Party and, in particular, her ability to

participate in sporting activities. Further, a surgical intervention might be required.

22. I propose, therefore, to make an order rejecting the PIAB assessment. Upon receipt of a

certified copy of this order, PIAB will be in a position to issue the authorisation necessary

23. There is, however, one further matter which should be addressed as follows. Whereas I

am satisfied that the value of any award which might be achieved at full trial is likely to

be in excess of €20,000, it must be doubtful whether it would exceed the monetary

jurisdiction of the Circuit Court in personal injuries proceedings (€60,000). I say this

having regard to the figures for similar injuries set out in the Book of Quantum (2016). It

is ultimately a matter for the next friend, with the advice of her legal representatives, to

decide in what jurisdiction to issue. This ruling should not, however, be interpreted as an

24. Section 35 of the PIAB Act indicates that the costs of an application for the approval of an

assessment which has been accepted on behalf of a minor shall be borne by the

respondent or respondents. This only makes sense, however, in the context of an

application where the next friend acting on behalf of a minor is inviting the court to

approve the amount assessed by PIAB. The obtaining of the court approval is the final

step in the process which allows the personal injuries claim to be “satisfied” without the

necessity of proceedings being instituted. It is a procedural step that must be performed

in the case of a minor, and it makes sense that the costs of the application should not be

borne by the claimant, i.e. deducted from the amount of damages as assessed by PIAB.

Rather, as with fees or expenses reasonably and necessarily incurred by the claimant in

complying with other provisions of the PIAB Act, the payment of the costs of the

application to court should be provided for separately. See, by analogy, section 45 of the

25. The same considerations do not apply in circumstances, such as in the present case,

where the position adopted by the next friend acting on behalf of a minor claimant has

changed during the course of the process. Having initially accepted the assessment, the

next friend in the present case now invites the court to reject the sum of €20,000 (plus

special damages and fees and expenses). Had the next friend simply rejected this

assessment from the outset, this would have avoided the necessity of making any

application to court. This is because the scheme of the legislation is such that the

sanction of the court is only ever required where it is intended to accept an assessment.

The decision to reject an assessment is one which can be made by a next friend on the

basis of independent legal advice without any necessity for involvement by the court.

26. Whereas the reasons for which the next friend in the present case changed her position

are understandable, the need for any application to court could have been avoided had

the assessment been rejected from the outset. Without intending any criticism of the

next friend or her legal advisers, it seems to me that it would be unfair to expect the

respondent to bear the costs of this avoidable and unnecessary application. This is

especially so where the respondent does not obtain the benefit which normally accrues to

a respondent in this type of application, namely the “satisfaction” of a personal injuries

action without the necessity for litigation. The effect of the ruling in the present case, i.e.

the order rejecting the assessment, is that the Injured Party will be authorised to institute

legal proceedings against the respondent. It would be unfair to require the respondent to

pay for the doubtful privilege of having proceedings instituted against him.

27. I propose to make an order rejecting the assessment of €20,000 (plus special damages

and fees and expenses) made by PIAB in respect of the personal injuries claim on the part

of the Applicant herein, Ella Dunne, and will make a declaration that, on receipt of a

certified copy of the order, PIAB may issue an authorisation within the meaning of section

14 of the Personal Injuries Assessment Board Act 2003. I will direct that the Registrar

shall send a certified copy of this order and judgment to the Personal Injuries Assessment

28. For the reasons set out under the previous heading, I make no order in respect of the

costs of the application for a ruling.

Result: PIAB assessment of damages not approved.

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