The Supreme Court have distinguished between claims for psychiatric injury, which require a Personal Injuries Assessment Board (“PIAB”) authorisation and claims solely for emotional distress, in the recent judgement of Patrick Dillon v Irish Life Assurance Plc.
By way of background, the applicant held a life assurance policy with the respondents and between May 2008 and May 2020 six letters were issued in error to an unauthorised third party. Those letters contained personal and financial information about the applicant. The applicant issued proceedings in the Circuit Court in 2021 claiming that the letters gave rise to a data breach and that the breach was caused by negligence and breach of duty causing him ‘distress, upset, anxiety, inconvenience, loss and damage’.
The applicant did not receive prior authorisation from PIAB to bring a claim and as a result the Circuit Court dismissed the proceedings. The applicant appealed to the High Court and argued that his claim was for non-material damages as allowed for under Section 117 of the Data Protection Act 2018 and not a personal injuries claim. The High Court upheld the decision of the Circuit Court and found that Section 117 allows for damages for infringements of data protection legislation but if the injured party seeks a remedy under this section, which amounts to personal injuries, then prior authorisation is required from PIAB.
The applicant was granted leave to appeal to the Supreme Court who had two issues to consider:
- Whether the non-material damage in the form of distress, upset and anxiety in respect of which the plaintiff seeks compensation falls within the statutory definition of “personal injury”, and;
- If the consequences of the data breach pleaded by the plaintiff can properly be construed as a form of “personal injury” under national law, whether a requirement to apply to the Board in the circumstances would render it excessively difficult for the plaintiff to exercise his right to compensation for non-material damage under the GDPR, in breach of Ireland’s obligation to give full effect to EU law.
The Supreme Court found that personal injuries actions are claims in which compensation is for a defined injury to a person and such cases do not encompass claims where the relief sought is for damages for distress or anxiety for the simple reason that the law does not allow such damages to be claimed as the sole relief in an action in tort. The PIAB Act 2003 defines personal injury as including “any disease and any impairment of a person’s physical or mental condition”.
The Supreme Court was of the view that the legislature did not intend for actions for mental distress to fall within the scope of personal injuries as Section 4 of the PIAB Act 2003 specifically extends the definition of ‘civil action’ to an action intended to be pursued for damages under s. 48 of the 1961 Act which allows for an action where death is caused by a wrongful act, neglect or default. These fatal accident claims enable the recovery of loss of pecuniary benefits and compensation for mental distress resulting from the death. If mental distress was itself a ‘personal injury’ that extension would not have been necessary.
The Supreme Court found that the applicants claim for negligence was misconceived as you cannot obtain damages in negligence for mental distress that falls short of a psychiatric injury. The court found that the applicants claim for breach of duty was founded in section 117 of the Data Protection Act 2018 and stated that having regard to the nature of the damage alleged, it would be clearer in future if claims made only pursuant to s. 117 were pleaded as such. The court noted that there may well be cases that allege a breach of the 2018 Act has caused a medically recognised psychiatric injury and so it is important to note that these actions for damages for personal injuries will fall within the 2003 Act and so will be required to go through the PIAB authorisation process.
The court noted that where an applicant’s 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’. As such the Supreme Court allowed the appeal of the applicant and found that a ‘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’.