Dillon v Irish Life Assurance Plc (Approved)

43.  One might have thought that the starting point - for reasons I have explained earlier – is that both of these arguments could not succeed as they appear to be mutually exclusive.  If the claim was statute barred, it was because the claim was for damages for personal injury.  But if the claim was for personal injuries, then unless the definition used in the Statute of Limitations differed from the understanding of personal injury recognised in the general law, there was a sustainable claim.  Conversely, if the action was not one for personal injuries, it was not obvious what claim there was.

44.  That presented the plaintiff's legal advisors with an unenviable dilemma.  If they accepted that the case was one for personal injuries, it was statute barred.  If they accepted that it was not a claim for personal injuries, they faced the difficulty of explaining what, exactly, the claim was for.  If their response had been that the claim was for worry and stress and that these were not personal injuries then the decision of both the Court of Appeal and of this Court would have necessarily involved an analysis of the definition of 'personal injury' in the 1957 Act. But that was not the plaintiff's response.  The statutory definition of 'personal injury' is not once mentioned in either judgment.

45.  Instead, the plaintiff's advisors appear to have proposed that the claim was not 'for' personal injuries, because it was 'for' either breach of contract, or 'professional negligence'.  That distinction featured prominently in the judgment of the High Court the subject of the appeal, the judge proceeding on the basis that the amendment she was permitting to the plaintiff's claim was to allow him plead 'the well recognised tort of professional negligence' (cited at para. 16 of the judgment of Peart J.).  The necessary implication was that when damages were claimed for worry and stress in an 'ordinary' negligence case it was personal injury, but that it was not personal injury when claimed in contract or claims based upon 'the well recognised tort of professional negligence'. That was the issue to which the Court of Appeal judgment and the judgment of this Court were directed.  The argument, of course, mixed apples and oranges or, as it is now more fashionably put, was based on a 'category error'.  The focus of the definition in the Statute of Limitations is on remedy, not cause of action (although unlike the 2003 Act, the Statute of Limitations as it has been interpreted in this Court excludes from the definition of a personal injury action some causes of action such as assault even though they seek damages for personal injury: see Devlin v. Roche [2002] 2 IR 360; Martin Canny Limitation of Actions (3^rd  edn. Round Hall Press 2022) at para. 13-01).

46.  Thus, the judgment records that counsel for the plaintiff conceded before the Court of Appeal that if the claim was for personal injuries, it was statute-barred (para. 24 of the judgment of Peart J., with whom Finlay Geoghegan and Hogan JJ. agreed).  The judgment of Peart J. (id.) records the plaintiff as arguing instead that the action was one for breach of contract, the suggestion being that if a claim for worry and stress was a personal injury if sought in an 'ordinary' negligence action, it lost that character when made by way of an action for breach of contract. The Court found, however, that the plaintiff could not prosecute a claim for breach of contract, because the only amendment to his pleadings permitted in the court below was a claim in negligence (para. 28).  From there, Peart J. proceeded on the basis (para. 28)  that because the claim was one in tort, therefore it was a claim for personal injury ('[t]he permitted claim is a claim in tort only, and can only therefore be a personal injury claim').  Having so found, the Court of Appeal decided both that the claim was statute-barred as it was 'a new personal injury claim in tort' (para. 29), and that such a claim could not be sustained because it was 'in respect of a category of claim for which damages are not recoverable, namely mental distress, stress generally and worry, but short of any recognised psychiatric illness' (para. 30).  The first of these findings, however, was a consequence of the manner in which the plaintiff had argued his case, not because this is how the Court analysed the nature of the damage.   The Court never analysed the nature of the damage.  It simply assumed that all it had to do was decide if the plaintiff could proceed with a claim in contract: if not, the claim was in tort and if the claim was in tort, it was a personal injury action.

47.  This may be why, in its Determination granting leave to appeal, this Court ([2016] IESCDET 20), described the issue of general public importance identified as arising from the Court of Appeal decision by reference to whether the manner in which the claim was framed affected whether it was an action to recover damages for personal injury, not by reference to whether 'worry and stress' were themselves personal injuries.  The issue as defined by the panel granting leave to appeal assumed that if the action was not a 'professional negligence action' it would have been a personal injury claim:

'whether a claim framed as a professional negligence action seeking damages for negligence and breach of contract in which the particulars of loss and damage claimed are worry and stress short of a recognised physical injury should be treated as a personal injury action subject to the statutory limitation period applicable to personal injury claims.'

(emphasis added)

As sometimes happens following the 33^rd Amendment to the Constitution, the Court in its decision following oral argument addressed not only the issue identified when leave was granted, but also two others (a) whether damages were recoverable in tort for 'worry and stress', and (b) whether those damages were recoverable in contract.

48.  It was the latter issue that occupied the greater part of the Court's legal analysis.  Denham CJ (with whom O'Donnell, McKechnie, MacMenamin, Laffoy, Dunne and O'Malley JJ. agreed) conducted (paras. 34-55) a detailed examination of the decision in Addis v. Gramaphone Company Ltd. [1909] AC 488 and the various authorities applying it in the sphere of professional negligence actions, concluding that the nature of the contract in issue (if any) was not such that damages for distress would be available.

49.  The other two questions received far shorter treatment (paras. 26-29).  At para. 26, Denham CJ said:

 'I would affirm the decision of the Court of Appeal ... that the claim as amended ... is solely a claim in negligence and so is statute barred.  Further, as it is a claim for "worry and stress" without any psychiatric illness, no damages would, at any rate, be recoverable.  Consequently, I would dismiss this aspect of the appeal of the plaintiff, on tort.'

50.  It is evident from this statement that the Court viewed the applicability of the Statute of Limitations as depending on the legal classification of the claim ('solely a claim in negligence and so is statute barred' (at para. 26)).  That, as I have observed, followed from the manner in which the plaintiff had defined the issues. Denham CJ elaborated upon that conclusion (at para. 29):

'Thus, I would dismiss this aspect of the plaintiff's claim.  I am satisfied that the claim as framed in the amendment made by Clark J., seeking damages for negligence, in which the particulars of loss and damage claimed are for worry and stress short of psychiatric illness, should be treated as a personal injury action, and so subject to the statutory limitation period applicable to personal injury actions.  Consequently, I would affirm the finding of the Court of Appeal that the claim was statute barred.  I would affirm also the decision of the Court of Appeal that damages would not lie for worry and stress in the absence of a psychiatric illness.  Consequently, I would dismiss the aspect of the appeal relating to the tort of negligence for personal injuries.'

(emphasis added) 

51.  Logically, the primary finding of law here was that the plaintiff could not maintain an action in negligence where the only damages claimed were 'worry and stress'.  This, in fact, was the issue to which the Court's legal analysis in the intervening paragraphs of the judgment (paras. 27 and 28) were addressed.  There, the Court concluded, approving the decisions in Walter v. Crossan  and Larkin v. Dublin City Council, that such damages were not recoverable.  The Court was, certainly, concluding that it would 'treat' such an action as one for 'personal injuries'.  However, it is clear that it was not proposing to conclusively decide that 'worry and stress' were a personal injury for the purposes of the statutory definition.  That is demonstrated not only by the fact that that definition of 'personal injury' in s. 2(1) of the 1957 Act is nowhere recited, let alone considered or analysed in the judgment, but also by the fact that were the Court concluding that such disturbance was, indeed, a personal injury within the meaning of the decision, the examination of the claim in contract would have been otiose as it, too, would have been statute-barred.  The very fact that the Court focussed its attention on that question is explicable only by reference - if not to the view that the contract claim was not statute barred - to the Court being happy not to actually decide that issue.  However, as I have previously observed, the Statute of Limitations draws no distinction between personal injuries actions that are framed in negligence, and those seeking to recover damages in contract.

52.  Murray v. Budds is accordingly properly viewed as clear authority for two and only propositions of law.  First, the rule in Addis v. Gramaphone Company Ltd. remains part of Irish law.  Second, that a claim for worry and stress cannot be pursued as the only damage alleged in an action in tort: a conclusion that had been reached in three earlier High Court cases (Hegarty v. Mercy University Hospital Cork, Larkin v. Dublin City Council and Walter v. Crossan).  Having regard to that conclusion, any consideration of the Statute of Limitations was both seemingly shaped by the case advanced by the plaintiff, and by definition, wholly academic - not only in that case, but in all cases in which such a claim in negligence was advanced.  The Statute of Limitations is only relevant to a claim recognised by law; if an allegation of negligence is said to have given rise only to worry and stress then there was no claim in negligence.  The Statute of Limitations does not arise.  A defendant to such a case never needs to plead and obtain a determination as to whether the case is statute-barred.  They are entitled to have it dismissed on the pleadings as a matter of course.

53.  Thus, and in summary, the issue of the nature of the damage (as opposed to the classification of the cause of action) was never addressed by the Court, because it was not in issue. The plaintiff argued that his case was not a personal injury action because it was a breach of contract and/or professional negligence action.  He did not argue that the damage he alleged was not capable of being a personal injury having regard to the statutory definition.  Therefore the Court did not decide whether that damage was or was not a personal injury.  It follows that the decision is not binding authority for the proposition that the statutory definition of personal injury captures for all claims, an action in which a 'standalone' claim is made for damages for emotional distress that falls short of a psychiatric injury.  If anything, the extensive consideration in the judgment of the claim in contract suggests that the Court thought otherwise, and that a claim for 'professional negligence' in which there was actual damage and an additional claim for worry and stress was captured by the six year limitation period, not the period applicable to personal injury claims.  At the very least that consideration shows that the Court was definitely not resolving whether worry and stress was a personal injury for the purposes of the statutory definition.

The order and conclusion

54.  The High Court Order recites that the appeal stood dismissed and that the Order of the Circuit Court was affirmed.  The Circuit Court Order recorded that the proceedings were dismissed on the grounds that they were frivolous, vexatious or bound to fail.  It is clear from the judgment of Barry O'Donnell J. that the reason the proceedings were so dismissed was that an authorisation from PIAB was required before the proceedings were instituted and that, such an authorisation not having been obtained, the action could not succeed.  It would seem that the Circuit Court order was made on the same basis. 

55.  There are some features of the Order in the light of the relief claimed and case as pleaded that merit note.  The proceedings sought damages for negligence and breach of duty (including breach of statutory duty).  The claim in negligence was, for the reasons I have explained earlier, misconceived: a plaintiff cannot obtain damages in negligence for mental distress that falls short of a psychiatric injury and, therefore, the damage which is a constituent element of the tort of negligence was not alleged.  There could, therefore, never have been liability in negligence.  The claim for breach of duty was at best otiose.  The plaintiff's claim was for non-material damage pursuant to the sui generis claim enabled by s. 117 of the Data Protection Act 2018.  While one might not fault a plaintiff for describing such a claim as one for breach of statutory duty, having regard to the nature of the damage alleged, it would be clearer in future if claims made only pursuant to s. 117 are pleaded as such.

56.  Because there may well be cases in which plaintiffs allege that an infringement of their rights under the 2018 Act have given rise to medically recognised psychiatric injury, it is important to stress that claims based upon such a medically recognised psychiatric injury will be actions for damages for personal injuries within the meaning of the 2003 Act and will accordingly have to go through the PIAB authorisation process. I stress this because defendants who are faced with pleadings that do not clearly identify the injuries for which compensation is sought will quite understandably wish to ascertain at an early stage whether a claim is or is not being advanced for a type of injury that requires PIAB authorisation.  It is first and foremost the responsibility of the plaintiff to plead and properly identify the type of loss for which they seek compensation and the precise legal basis on which they do so. Where their claims are solely for mental distress, upset and anxiety they will fall outside the PIAB regime, but they cannot expect anything other than very, very modest awards.

57.  It follows from the foregoing that this appeal should be allowed.  A freestanding claim in tort or contract seeking to recover damages for emotional disturbances such as anxiety, distress, worry, fear, inconvenience and upset that fall short of a recognised psychiatric disorder is not a personal injury claim within the meaning of the Personal Injuries Assessment Board Act 2003.  Any other construction would assume that the Oireachtas intended the phrase 'personal injury' to deviate from its normal usage by the legal profession, that it imposed a requirement for authorisation by PIAB in respect of claims for damages for negligence that could not in law be sustained, and that it imposed on PIAB the burden of assessing categories of tort or contract actions that were in no sense within the contemplation of that legislation.  As this was a claim only for damages for distress, upset, anxiety and inconvenience that falls short of a recognised psychiatric disorder, an authorisation from PIAB was not required as a precondition to instituting proceedings.  The other questions canvassed in the course of the hearing do not, therefore, arise.

Result:     Allow Appeal