Supreme Court allows appeal dismissing PIAB authorisation requirement for non-psychiatric distress claims.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Supreme Court Appeal Number: S:AP:IE:2024:000055

[2025] IESC 37

O’Donnell C.J. Dunne J. Hogan J. Murray J. Collins J.

BETWEEN/

PATRICK DILLON

PLAINTIFF/APPELLANT

- AND –

IRISH LIFE ASSURANCE PLC

DEFENDANT/RESPONDENT

JUDGMENT OF Mr. Justice Brian Murray delivered this 24rd day of July 2025 The main issue and the facts

1. Section 12 of the Personal Injuries Assessment Board Act 2003 (‘the 2003 Act’), requires that a party proposing to bring proceedings to recover damages for ‘personal injury’ obtain an authorisation from the Personal Injuries Assessment Board (‘PIAB’)1 before instituting such an action. In this case, the plaintiff claims damages for distress, upset, anxiety, and inconvenience consequent upon an alleged breach by the defendant of his rights as protected by various iterations of data protection legislation. He did not obtain an authorisation from PIAB before commencing the case. The Circuit Court, and the High Court on appeal, found that the proceedings sought damages for ‘personal injury’, that an authorisation from PIAB ought to have been obtained before they were instituted and that the action should be dismissed in consequence as being frivolous, vexatious or bound to fail.

2. In this appeal against the decision of the High Court, the plaintiff says that the phrase ‘personal injury’ as it appears in the 2003 Act refers only to an impairment of a person’s physical or mental condition, that this does not include the distress, anxiety and upset for which he seeks compensation in this case and, therefore, his action is not one to recover damages for personal injury as that phrase is used in the 2003 Act. The defendant says that the term ‘personal injury’ includes an emotional disturbance such as distress or upset and that, accordingly, the claims advanced by the plaintiff could not have been properly commenced without a Under s. 2 of the Personal Injuries Resolution Board Act 2022 (commenced in December 2023), the name of the Board has been changed to the Personal Injuries Resolution Board and the legislation, as amended, is now cited as the Personal Injuries Resolution Board Acts 2003 to 2022: as the proceedings arise from events before these changes I continue to use the old descriptions of PIAB and the 2003 Act. PIAB authorisation. The defendant also says – for the same essential reason – that the proceedings ought to have been commenced by Personal Injuries Civil Bill (they were instituted by means of an Equity Civil Bill).

3. The facts are simple and, for present purposes, not in dispute. The plaintiff held a life assurance policy with the defendant. At various points between May 2008 and May 2020 six letters in relation to that policy were issued in error by the defendant and sent to a third party. Those letters contained personal and financial data of the plaintiff. In June 2021, the plaintiff issued these proceedings in the Circuit Court. It was his case that those events gave rise to data breaches, and that those breaches were caused by negligence and breach of duty, including breach of statutory duty, on the part of the defendant, thereby causing him “distress, upset, anxiety, inconvenience, loss and damage”. On account of the time period over which the breaches were alleged to have occurred, the plaintiff relied on the provisions of both the Data Protection Acts 1988 and 2003, and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (‘the GDPR’). The GDPR is implemented by the Data Protection Act 2018 (‘the Act of 2018’).

4. In the Circuit Court, the plaintiff sought (i) a declaration that the defendant had breached the Data Protection Acts 1988 and 2003 and/or the GDPR and (ii) damages for negligence and breach of duty, including statutory duty. In response to a Notice for Particulars served by the defendant on 26 October 2021, the plaintiff confirmed that the alleged “inconvenience, loss and damage” did not consist of or include anything beyond or additional to the “distress, upset and anxiety” that was pleaded, nor was he claiming special damages at that stage.

Relevant statutory provisions

5. Article 79 of the GDPR provides that a data subject is entitled to an effective judicial remedy, as against a controller or processor, where his or her rights under the Regulation have been infringed as a result of the processing of his or her data in non-compliance with the Regulation. Article 82(1) provides for a right to compensation in such instances:

“Any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered.”

6. It is clear that the right to compensation will not arise simply because there has been an infringement of the GDPR: ‘such an infringement cannot, in itself, constitute ‘non-material damage’ within the meaning of that regulation’ (Case C- 741/21 GP v. juris Gmbh Case at para. 37). However, the provision does include a right to compensation where the claimant has suffered ‘no harm other than those adverse emotional effects of a temporary nature’ (Case C-300/21 UI v. Österreichische Post AG at para. 12). This includes ‘the fear experienced by a data subject with regard to a possible misuse of his or her personal data by third parties as a result of an infringement of that regulation’ (Case C-340/21 VB v. Natsionalna agentsia za prihodite at para. 86).

7. The State has given effect to the right to compensation under EU law by means of s. 117 of the Data Protection Act 2018 (‘the 2018 Act’), the relevant provisions of which are as follows:

“(1) Subject to subsection (9), and without prejudice to any other remedy available to him or her, including his or her right to lodge a complaint, a data subject may, where he or she considers that his or her rights under a relevant enactment have been infringed as a result of the processing of his or her personal data in a manner that fails to comply with a relevant enactment, bring an action (in this section referred to as a “data protection action”) against the controller or processor concerned.

(2) A data protection action shall be deemed, for the purposes of every enactment and rule of law, to be an action founded on tort.

…

(4) The court hearing a data protection action shall have the power to grant to the plaintiff one or more than one of the following reliefs:

(a) relief by way of injunction or declaration; or

(b) compensation for damage suffered by the plaintiff as a result of the infringement of a relevant enactment.

…

(10) In this section—

“damage” includes material and non-material damage; …”

8. Obviously, the issue in this appeal depends on how the right to compensation for ‘non-material damage’ envisaged by these provisions interacts with the requirements of the 2003 Act. Section 12 of that Act provides that unless and until an application is made to the Board for an assessment of the relevant claim under s. 11, and the bringing of those proceedings is authorised under ss. 14, 17, 32, 36 or the rules under s. 46(3) or s. 49, “no proceedings may be brought in respect of that claim”. It has been decided (Clarke v. O’Gorman [2014] IESC 72, [2014] 3 IR 340) that s. 12 does not operate as a jurisdictional bar, but instead operates to bar a remedy where a plea to that effect is made by the defendant, thus corresponding with the effect of the institution of proceedings outside many of the periods fixed for particular claims by the Statute of Limitations 1957, as amended.

9. Section 9 of the 2003 Act defines “relevant claim” as a “civil action to which this Act applies.” “Civil action” is defined in s. 4 of the 2003 Act:

““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)”.

10. Section 4 proceeds to exclude from this definition ‘an action intended to be pursued in which, in additional 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’. This has, as Barry O’Donnell J. observed in the course of his judgment in this case, been interpreted by this Court ‘in a particular manner’. In Clarke v. O’Gorman the Court made it clear that the ‘other cause of action’ referred to here should be understood as meaning ‘a cause of action other than that in which personal injuries are claimed’. I will return to the consequences of this conclusion later.

11. The terms “wrong” and “personal injuries” are further defined in s. 4 by reference to the Civil Liability Act 1961 (“the 1961 Act”). Section 2 of that Act defines a “wrong” as a “tort, breach of contract, or breach of trust…” and “personal injury” as including “any disease and any impairment of a person’s physical or mental condition.” In this way, if a claim constitutes a “civil action” within the meaning of s. 4, the regime established under the 2003 Act and Part 2 of the Civil Liability and Courts Act 2004 (“the 2004 Act”) will apply to the claim.

The application to dismiss

12. After delivering its Defence on 10 December 2021, the defendant issued a motion seeking to have the plaintiff’s proceedings struck out on the grounds that they were vexatious, frivolous and bound to fail. The application was based on the contention that the action was a “relevant claim” for the purposes of Part 2 of the 2003 Act and required prior authorisation from PIAB, that authorisation never having been sought or obtained by the plaintiff. In addition, the defendant submitted that the action ought to be struck out as the proceedings were commenced by an Equity Civil Bill, and not a Personal Injuries Summons as required in the case of proceedings in the Circuit Court ‘in respect of a personal injuries action’ by s. 10(1) of the 2004 Act.

13. In a decision dated 3 May 2022, His Honour Judge O’Connor accepted the defendant’s contention that the harm claimed by the plaintiff constituted a “personal injury” as defined by the 1961 Act, the 2003 Act and the 2004 Act and further, that the proceedings were required to be commenced by Personal Injuries summons. He accordingly dismissed the plaintiff’s proceedings on the grounds that they were frivolous, vexatious, or bound to fail. The plaintiff appealed that finding to the High Court. In the course of the appeal, the plaintiff limited his claim to data breaches that were alleged to have occurred after the introduction of the GDPR, on 25 May 2018. As well as contending that his claim was not an action for personal injuries as that term is used in the 2003 Act, the plaintiff argued before the High Court that a requirement to apply to PIAB in the circumstances of his case 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.

14. In a clear, focussed and considered judgment ([2024] IEHC 203), Barry O’Donnell J. first addressed whether the plaintiff’s claim could be reduced to a simple claim for non-material damage under the GDPR and the 2018 Act. In his view, the plaintiff’s claim was not exclusively based on the defendant’s failure to comply with its obligations under the data protection provisions but also encompassed a general plea of negligence and breach of duty. The plaintiff’s claim for breach of statutory duty could nonetheless be regarded as “an action founded on tort” and therefore a claim made pursuant to s. 117 of the 2018 Act. O’Donnell

J. was accordingly satisfied that the plaintiff’s claim was an action in respect of a “wrong” within the meaning of s. 2(1) of the 1961 Act.

15. Second, the Court considered whether the damages sought by the plaintiff were damages for “personal injuries” within the meaning of s. 2 of the 1961 Act. While noting the Judicial Council’s Personal Injuries Guidelines of March 2021, the Court was of the view that the statutory definition of “personal injury” was not limited to “impairments” that give rise to a recoverable award of damages. He did not find any conceptual difficulty in regarding a data protection action as a “civil action” for the purposes of the 2003 Act, given that a data protection action is an action in respect of a “wrong” within the meaning of the 1961 Act. He further rejected the plaintiff’s argument that the requirement to submit a medical report with a claim for PIAB authorisation (s. 11(3A) of the 2003 Act) reinforced his contention that a claim for non-material damages did not fall within the definition of “personal injuries”.

16. The Court then addressed what the judge characterised as the plaintiff’s “central and most substantial argument”, namely, that the alleged ‘distress, upset and anxiety’ was not captured by the definition of “personal injury” but was rather a description of non-material damage for the purpose of recovery under the GDPR.

He said that in Murray v. Budds [2017] IESC 4, [2017] 2 IR 178, this Court approved the decision of Hogan J. in Walter v. Crossan [2014] IEHC 377, [2014]

1 IR 76 and held that damages for “worry and stress”, absent a recognisable psychiatric injury, were not recoverable in negligence. He considered that the Court in Murray v. Budds had “no apparent difficulty” in treating claims for worry and stress as amounting to a form of claim for personal injuries to which the shorter limitation periods for personal injury actions applied. On the basis of that approach, the judge felt that it was difficult to ascertain a basis for treating the plaintiff’s claim differently. He found that “in some cases”, anxiety and distress could amount to an impairment of a person’s mental condition, particularly as the definition in s. 2 of the 1961 Act referred to “any” physical or mental impairment. Thus, O’Donnell J. concluded that the plaintiff’s claim (a) was an action in respect of a “wrong” within the meaning of s. 2(1) of the 1961 Act, (b) was pursued for the purpose of recovering damages, and (c) that the damages were for “personal injuries”, thereby satisfying the constituent elements of a “civil action” under s. 4(1) of the 2003 Act. It followed that the plaintiff’s claim was a “relevant claim” for the purposes of Part 2 of the 2003 Act and, as such, required prior PIAB authorisation.

17. Insofar as the issues of EU law were concerned, the High Court did not see any difficulty in requiring PIAB authorisation for data protection compensation cases under s. 117 of the 2018 Act. Citing the judgment in UI v. Österreichische Post AG, O’Donnell J. emphasised that national procedural rules could apply to GDPR claims for compensation so long as the principles of equivalence and effectiveness were observed: “[i]t is for the national legal order of each Member State to establish procedural rules for actions intended to safeguard the rights of individuals, in accordance with the principle of procedural autonomy” (UI v. Österreichische Post AG at para. 53). While the PIAB authorisation process “may be cumbersome,” particularly where a grant of authorisation pursuant to s. 17 of the 2003 Act was highly likely, it did not prevent a party from bringing a claim for non-material damage in the Circuit Court but operated as a “procedural prerequisite in Irish law for certain categories of cases” (judgment, para. 35). Further, he considered that the Oireachtas had not taken steps to disapply the 2003 Act to civil actions under the GDPR regime, as it had done with respect to certain civil actions pursuant to particular EU Regulations and international conventions under s. 3A of the 2003 Act.

18. The plaintiff was granted leave to appeal to this Court ([2024] IESCDET 92). The Court considered that the case raised issues of general public importance as to whether a claim for damages for “distress, upset and anxiety” arising from an alleged data breach could be regarded as a claim for damages for “personal injury”, and the compatibility of the requirement for prior PIAB authorisation with Article 82 of the GDPR, insofar as these issues are of significant practical importance for litigants and for the courts dealing with data protection claims. In the course of case management, the Attorney General was joined as a notice party to these proceedings to assist the Court in resolving questions concerning inter alia the nature of the regime of liability under the GDPR and the compatibility of the domestic requirement for prior PIAB authorisation with EU law.

19. It is in this way that the two issues now before this Court fall for consideration:

(i) 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”, as found by the High Court.

(ii) 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.

Statutory definitions of “personal injury”

20. The first statute to use the term ‘personal injury’ in the context of the general regulation of civil liability for such damage was the Employers’ Liability Act 1880.2 It modified the (judge made) doctrine of common employment pursuant to which an employer was not liable in law to an employee for the wrongs of a fellow worker, making ancillary provision for workman’s compensation accordingly. By definition, the legislation was directed to a particular type of The phrase also appeared in other contexts in the Small Debts’ Recovery (Ireland) Act 1837 c. 43, Civil Bill Courts (Ireland) Act 1851 c. 51, Coal Mines Act 1855 c. 108, Mines Act 1860 c. 151, Merchant Shipping Act 1862 c. 124 (which set out the extent of the liability of shipowners for such injuries where caused to a person traveling in a ship), Metalliferous Mines Regulation Act 1872, Stamp Act 1870, Customs and Inland Revenue Act 1870. Later, the phrase was used in defining the scope of the Workmen’s Compensation Act 1897 (s. 1(1)). injury rather than a specific cause of action. The doctrine of common employment was completely abolished in England and Wales by the Law Reform (Personal Injuries) Act 1948, which also made provision for the treatment of certain benefits in the calculation of damages for personal injury and fatal accident claims. While the 1880 Act did not define ‘personal injury’, the 1948 Act did. It provided that ‘personal injury’ included ‘any disease and any impairment of a person's physical or mental condition’. This was the first time that definition (or any other definition of personal injury) appeared on the statute book. As with the 1880 Act, it was not limited to any particular causes of action: the focus was entirely on the remedy sought in a given case. Having been introduced in that legislation, the definition has been repeated across the statute book in the United Kingdom, most significantly for present purposes when it was adopted shortly after the enactment of the 1948 Act in framing the then new, and specific, three year limitation period for actions for damages for personal injury (Law Reform (Limitation of Actions &.c) Act 1954).

21. In 1957, the Oireachtas introduced a similar limitation period for personal injury claims in this jurisdiction. It was thus that the definition of ‘personal injury’ provided for in the English Act of 1948 made its way into Irish law. Section 11(2)(b) of the Statute of Limitations, 1957 provided for a limitation period of three years for actions claiming damages for ‘negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision)’ where those damages consisted of or included damages ‘in respect of personal injuries to any person’. It is of some importance to my later consideration of the decision of the Court in Murray v. Budds that this limitation period was not limited to claims in tort, but also extended to breach of contract actions in which damages for ‘personal injury’ were sought. It is also relevant that the limitation period is triggered not where damages for personal injury are the only, or even the main, relief sought in the action, but wherever such damages are included in the claim (‘where the damages claimed … consist of or include damages in respect of personal injuries’). Section 2(1) of the 1957 Act contained, for this purpose, the same definition of ‘personal injuries’ as had been used in the equivalent English statute. That definition was then repeated when the Oireachtas proceeded the following year to abolish the doctrine of common employment in this jurisdiction (Law Reform (Personal Injuries) Act, 1958).

22. I have earlier explained that the 2003 Act provides (s. 4(1)) that the term ‘personal injury’ shall have the same meaning as in the Civil Liability Act 1961. Unsurprisingly, the 1961 Act adopted the definition introduced by the Statute of Limitations four years earlier. That definition was relevant to three aspects of the 1961 Act: (a) ‘damage’ (a term appearing throughout the legislation) is defined as including personal injury, (b) the exclusion of ‘damages for any pain or suffering or personal injury’ from causes of action that survive death (s. 7), and (c) certain provisions addressing concurrent fault in maritime cases (s. 46(2)). Significantly, it seems clear that the draftsman of the 1961 Act viewed ‘personal injury’ on the one hand, and emotional impacts such as ‘pain and suffering’ or ‘mental distress’ as quite distinct. Section 7(2), in the context of survival of causes of action, refers to ‘damages for any pain or suffering or personal injury or for loss or diminution of expectation of life or happiness’. Section 47(1), addressing fatal accident claims, refers to ‘injury or mental distress’ in terms that presume that these were viewed as distinct from claims for damages for personal injury, while s. 48 of the 1961 Act enables the recovery of loss of pecuniary benefits and ‘compensation for mental distress resulting from the death…’ (s. 49(1)(a)). Similarly, separate and specific provision was made in the Statute of Limitations (Amendment) Act 1991 for a three year limitation period on the bringing of such claims: in that legislation, they were also treated as distinct from actions seeking to recover damages for personal injury. As I explain later, that distinction is also carried into the 2003 Act.

23. The definition appearing in s. 2(1) of the 1961 Act has since been widely used throughout the statute book, including in amendments to the Courts Acts (s. 1(7) of the Courts Act 1988) and the Solicitors Act 1954 (s. 4(10) of the Solicitor (Amendment) Act 2002). It has also been used in s. 2(1) of the Safety, Health and Welfare at Work Act 1989, s. 1 of the Liability for Defective Products Act 1991 s.2(1) of the Civil Liability and Courts Act 2004 and s. 16 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013. Its prevalence is such that it is easy to lose sight of the fact that while the definition of ‘personal injury’ used in these statutes is comprehensive, in none of them does it purport to be of general application. It is, instead, used for various distinct, related but quite specific purposes. None of these Acts purport to replace what I will refer to throughout the rest of this judgment as ‘the common law definition of personal injury’. By this I mean the test applied by the courts to determine if there is damage to the person that will complete the tort of negligence, or that will be of such substance as to enable a court to award damages where sought on a standalone basis in claims based on torts other than negligence. The description of ‘personal injuries’ in s. 2(1) of the 1961 Act reflects (but does not purport to either supplant or exhaustively replicate) that common law definition, being broad enough to capture the concept of ‘personal injury’ that had been developed by the courts, while not expressly incorporating the refinements and nuances that had been developed at common law.

The common law definition of “personal injury” and distress, upset, anxiety, and inconvenience

24. The relationship between the common law definition of personal injury, and that appearing in s. 2(1) of the 1961 Act is key to this case. The interests in the person recognised by the common law were protected by the law of negligence when there was, in the case of physical damage, ‘real damage, as distinct from damage which is purely minimal’ (Rothwell v. Chemical & Insulating Co Ltd. [2007] UKHL 39, [2008] 1 AC 281 at para. 39 (Lord Hope) citing Lord Evershed in Cartledge v. E Jopling & Sons Ltd [1963] AC 758 at p. 774). In the case of impairment of a person’s mental condition, what had to be proven was ‘a medically recognised psychiatric illness resulting from shock’ Kelly v. Hennessy [1995] 3 IR 253, 274 per Denham J.). However, the meaning of ‘psychiatric injury’ for these purposes is constrained, and is defined in contradistinction to general upset or anxiety: ‘[t]he starting point is the clear distinction traditionally drawn between fear or other distress short of a psychiatric injury on the one hand, and a personal injury on the other hand’ (Kimathi and ors. v. Foreign and Commonwealth Office [2018] EWHC 1305 at para. 17 per Stewart J.). This means, of course, that the definition of injury may develop as medicine classifies disorders as psychiatric injuries, and it also means that disturbances such as stress and anxiety may in some cases amount to such an injury.

25. However, the distinction between emotional distress that is not an injury, and a psychiatric condition that is, remains embedded in the law. It is not and never has been possible to claim damages in negligence solely for mental distress, upset, fear, anxiety or inconvenience: ‘damages were not recoverable for grief or sorrow alone; no degree of mental anguish arising from the wrongful acts or omissions of another was compensatable at common law’ (Fletcher v. Commissioners for Public Works [2003] 1 IR 465, 474 per Keane CJ); ‘[t]here is no stand alone right of claim for being upset’ (Murray v. Budds at para. 53 per Denham CJ); ‘fear by itself, of whatever degree, is a normal human emotion for which no damages can be awarded’ (Hicks v. Chief Constable of the South Yorkshire Police [1992] 2 All ER 65, 69 per Lord Bridge). A breach of a duty of care that causes only damage of this kind cannot give rise to a claim in negligence, as there is no legally cognisable damage for this purpose and negligence is a tort of which damage is a constituent element (Hegarty v. Mercy University Hospital Cork [2011] IEHC 435 per Irvine J. at para. 52). With the possible exception of the unusual cause of action recognised in Wilkinson v. Downton [1897] 2 QB 57,3 the same was the case where damages for injury to the person were sought to be recovered in other tortious actions, such as in trespass. It is for these reasons that it has been Even then, the better view would now appear to be that conduct which has the deliberate aim of causing physical harm or severe mental or emotional distress is not actionable unless it results in physical harm, or a recognised psychiatric injury (O (A Child) v. Rhodes [2015] UKSC 32, [2016] AC 219 at paras. 83-88). The same suggestion is made by Hogan J. in Walter v. Crossan at para. 26 and see Sullivan v. Boylan [2013] IEHC 104 [2013] 1 IR 510 at pp. 525-526. repeatedly said that damages for worry and stress alone, not giving rise to a psychiatric injury are not recoverable in tort (see Larkin v. Dublin City Council [2007] IEHC 416, [2008] 1 IR 391).

26. However, damages for mental distress and upset may be recovered for other actionable wrongs, where (in the case of claims in tort)4 these are consequent upon proven and recognised damage, or (in the case of contractual claims) where the protection of the plaintiff against such losses was envisaged as part of the bargain: a plaintiff ‘is also entitled to be compensated for disappointment and loss of enjoyment in respect of the loss of expectation for which he or she has actually contracted’ (Walter v. Crossan Homes Ltd. at para. 19).5 The very purpose of compensatory damages is ‘to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience or other harmful effects of a wrongful act’ (Conway v. Irish National Teachers Organisation [1991] 2 IR 305,

317 per Finlay CJ). Indeed, the compensation for pain and suffering awarded as part of the damages for personal injury itself incorporates mental distress caused by an injury, and it is by no means uncommon to see plaintiffs claiming aggravated damages by reference to the particular distress, anguish or worry an asserted wrong has caused – as they are entitled to do (Conway v. Irish National Teachers Organisation at p. 316-317).

Damages for false imprisonment may include compensation for injury to feelings and mental distress (GE v. Commissioner of an Garda Síochána [2021] IECA 113 at para. 133). The same is true of nuisance (Bone v. Seal [1975] 1 WLR 797), trespass to land (Saunders v. Edwards [1987] 1 WLR 1116), deceit (Archer v. Brown [1984] 2 All ER 267), trespass to goods (Owen and Smith v. Reo Motors (Britain) Ltd. (1934) 151 LT 274), defamation (Khodaparast v. Shad [2000] 1 All ER 545), assault (Alseran v. Minister for Defence [2017] EWHC 3289) and malicious prosecution (Thompson v. Metropolitan Police Commissioner [1998] QB 498). Thus damages have been awarded for such losses in contractual claims for ruined holidays (Jarvis v. Swan Tours [1973] QB 233), for breach of a contract to supply facilities for a post wedding party (Dinnegan v. Ryan [2002] 3 IR 178), as well as for the construction of a dwelling house (Leahy v. Rawson [2004] 3 IR 1).

27. Critically, however, none of this means that emotional distress is converted for some purposes into a personal injury. It is just that where a recognised injury is established, the law will compensate a plaintiff for all of the consequences of that injury, even if those consequences could not in themselves give rise to an action for damages. The position is very similar to that arising in cases of economic loss. While losses of that kind will not usually be recoverable in an action for negligence, they may be recovered if a forseeable result of damage to person or property that is itself compensatable (see the discussion in Barlow v. Minister for the Communications, Marine and Natural Resources [2025] IESC 14 at para. 167 et seq.).

28. Whether or not it predated the various legislative provisions to which I have earlier referred, the concept of a ‘personal injury action’ has for some time had a strong currency and parameters that are widely and generally understood; such actions are, as O’Donnell J. (as he then was) put it in Clarke v. O’Gorman, ‘almost the standard unit of civil claims’. Subject to those claims in which damages are sought for injury to property and to the person arising from the same event, a personal injury action is one in which the relief sought includes damages to compensate for a loss of physical or mental function, and it is not a claim in which standalone damages are sought to compensate for distress or anxiety. The cases are abound with clear statements to that effect: ‘[p]ersonal injury law exists to compensate for personal injury not mere distress and humiliation’ (GKE v. Gunning [2023] EWHC 322 (KB) at para. 202 (per Ritchie J.); ‘It is trite law that “distress”, “upset”, “fear” and other similar human emotions do not constitute personal injury’ (Brown v. Commissioner of Police of the Metropolis [2020] 1 WLR 1257 at p. 1263 per Coulson LJ, addressing this language as it appeared in provisions of the Civil Procedure Rules defining the one-way costs shifting regime introduced by those provisions); ‘a claim for distress and anxiety arising from an alleged course of conduct amounting to harassment is not, without more, a personal injury claim’ (Zu Sayn-Wittgenstein-Sayn v. HM Juan Carlos de Borbón y Borbón [2023] 1 WLR 1162, at para. 74 per Simler LJ, addressing the phrase in s. 5 of the State Immunity Act 1978), a claim for ‘”distress”, “upset” and other similar human emotions do not constitute personal injury’ (Bell v. Metropolitan Police Commissioner [2024] EWHC 379 at para. 341).

29. That legal context exposes an array of surprising consequences if the defendant’s construction of the term ‘personal injury’ as it appears in the 1961 Act is correct. It means that the definition of that term deviates from the elements of damage required at common law to complete the tort of negligence. It means that the definition extends further than the concept of compensatable harm as recognised in all other torts. It means that the definition does not reflect common usage in the legal profession and the courts of the term ‘personal injury’. It means that the term ‘civil action’ in the 2003 Act includes a type of claim unknown to the law which is, therefore, not actionable at all – indeed in the course of oral argument counsel for the defendant had little option but to contend that the logic of his case was that there was a law of personal injury that was distinct from the law of recoverable personal injury, and that PIAB (for no immediately obvious reason) had as part of its statutory function the assessment of claims that were not legally valid claims at all.

30. But perhaps most significantly, it at the very least suggests that in any case in which a plaintiff seeks damages for mental distress or anxiety consequent upon other proven injury, or in an action for breach of contract, their action is a personal injury action, which must be processed by PIAB before the plaintiff can proceed with their proceedings. In other words, it is the logical consequence of the defendant’s argument here that where a plaintiff, for example, recites in his proceedings for defamation that the publication of which he complains caused him distress, upset and anxiety and where that plaintiff pleads that this should be taken into account in making an award of damages, his case is, by reason of that plea, a claim for damages for personal injury. Similarly, it must follow from the defendant’s essential case that a plaintiff who seeks to be compensated for distress caused by a false imprisonment, or trespass to their person, must proceed through PIAB. It would also appear to follow that a plaintiff who claims damages for distress as part of a claim in negligence against their solicitor, or for the disappointed expectations of a ruined holiday, or for that matter who intends to claim aggravated damages to reflect the impact of a defendant’s culpable conduct must exhaust the PIAB route. Indeed, again necessarily, counsel for the defendant so conceded: a claim for distress, upset and anxiety if made in a ‘holiday case’ would, he said, have probably required PIAB authorisation.

The statutory definition

31. This is the overall background against which the Court must confront the – far from straightforward – exercise in statutory interpretation presented by this appeal. The first point of contact, of course, is the language used in the definition. But insofar as concerns the issue arising here, the provision is ambiguous. Mental distress and anxiety that falls short of a recognised psychiatric disorder might well be categorised as an ‘impairment’ of a person’s mental condition. A person who is suffering from emotional distress that falls short of a recognised psychiatric disorder may well find their mental security diminished in consequence. That interference with their well-being may be temporary, may not reach the level of a recognised medical disorder, and along what is necessarily a spectrum, may tend more in the direction of mood than of illness. It is, however, at least arguably an alteration in temperament that would not have occurred but for a wrongful act and, thus, properly viewed as an ‘injury’ that is, of its very nature, ‘personal’.

32. But it might also be said that it is not such an impairment. It can be argued with some force that the reference to ‘impairment’ implies a disability or reduction in function: a person may be annoyed, upset, anxious or distressed, and while those conditions may be emotionally debilitating, they are not ‘impairments’ as that term is generally understood. They do not injuriously lessen or weaken the ability of the affected person to carry on their everyday activities in any real or material sense. Nor do they result in a reduction in functional capacity, and they thus stand to be contrasted with an ‘injury’ as that term is ordinarily understood: ‘a condition that departs from the normal, which is not a mere transitory discomfort or inconvenience and which, whilst not permanent or incurable, has, in conjunction with its degree of seriousness, a sufficient duration. It includes a loss of function’ (per Lord Hobhouse in Morris v. KLM Royal Dutch Airlines [2002] 2 AC 628, 674, addressing the phrase as it appears in Article 17 of the Warsaw Convention).

Thus, on this argument, the statutory definition envisages not an abstract inquiry into whether there has been an ‘impairment’, demanding instead that ‘something’ be impaired. What must be ‘impaired’ is a physical condition, or a mental condition. It was very well put by counsel for the plaintiff in oral argument: the words in their ordinary meaning clearly refer to the kind of injury that can be diagnosed as a condition that is more than fleeting and that has a specific effect on functional capacity, and which would in the normal course require a medical or psychological treatment or diagnosis.

33. While either of these interpretations involves a plausible, and each a reasonable, construction of the words of the section, viewed alone and in the abstract, considerations of purpose and context weigh heavily in favour of the second construction. The 2003 Act was introduced to advance the objective of enabling the early, efficient and fair resolution of a particular type of claim. Those claims were not defamation actions, or actions in trespass or false imprisonment, in which plaintiffs sought compensation for the distress, anxiety or upset that followed from their being libelled or imprisoned, as the case may be, ancillary to their main claims for damages. The claims were those colloquially referred to as ‘personal injuries actions’ and these are actions in which the claim is for compensation for a defined injury to person, whether or not combined with a damage to property. Such cases do not encompass claims where the only relief sought is 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, and only in the most particular of cases (themselves not within the usual contemplation of the phrase ‘personal injury action’) does it do so in contract.

34. Some textual support for the view that the legislature did not, generally, intend actions for mental distress to come within the scope of ‘personal injuries’ can be derived from the fact that s. 4 of the 2003 Act specifically extends the definition of ‘civil action’ to an action intended to be pursued for damages under s. 48 of the 1961 Act. The fatal accident claims with which those provisions are concerned enable the recovery of loss of pecuniary benefits and ‘compensation for mental distress resulting from the death…’ (s. 49(1)(a)(ii)). If mental distress was itself a ’personal injury’ that extension would not have been necessary. Similarly, separate and specific provision is made in the Statute of Limitations (Amendment) Act 1991 for a three year limitation period on the bringing of such claims: in that legislation, also, they were not understood as involving actions seeking to recover damages for personal injury (indeed, in the Civil Liability Act as originally enacted, such claims had their own limitation period, specified in s. 48(6)). And, as I have already noted, s. 7 of the 1961 Act proceeded on the basis that damages for pain and suffering and for ‘diminution of … happiness’ and damages for personal injury were distinct.

35. Bearing this in mind, a construction of the 2003 Act that focusses on its context and purpose means – if the defendant is correct – that the 2003 Act extended the requirement for authorisation to claims for negligence that could not in law be sustained, while at the same timing imposing on PIAB the burden of assessing categories of tort or contract actions that were in no sense within the contemplation of the legislation. The inherent unlikeliness of that outcome and of the distinction to which I alluded earlier between ‘personal injury’ and ‘recoverable personal injury’ points coercively to the conclusion that the narrower interpretation of the definition of ‘personal injury’ urged by the plaintiff is the correct one.

Clarke v. O’Gorman

36. The defendant’s response to this, while stressing what it said was the literal construction of the definition, was to assert that cases in which damages were sought for distress or anxiety as a secondary remedy did not fall within the 2003 Act, because the primary remedy was, as the case may be, damages for defamation or false imprisonment. Specific reference was made in this regard to s. 4 of the 2003 Act, and to the consideration of that provision in the decision in Clarke v. O’Gorman. Section 4 states:

‘“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 additionl 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. …’

37. The issue in Clarke v. O’Gorman was whether a claim for assault, sexual assault, battery and trespass to the person was an action for personal injuries to which the authorisation requirements of the 2003 Act applied. It was held that as pleaded in that case, it was. The argument was advanced by the plaintiff, based upon High Court authority, that if an action was in reality and in substance a claim for trespass to the person and assault, it was not a civil action for personal injuries. That argument was based on the proposition that where a plaintiff claimed as his or her primary cause of action damages for assault or trespass to the person, the principal or substantive claim was a claim for damages arising out of those torts and not a claim for damages for personal injuries. That argument is obviously a close relative of the contention advanced in oral argument by the defendant that a claim for defamation, false imprisonment or trespass to land or goods in which it was sought to include within the calculation of damages a sum to reflect mental distress and anxiety was not a claim for personal injuries because it was primarily an action to recover damages to reflect injury to reputation, liberty, or property.

38. That contention was rejected by this Court, O’Donnell J. (as he then was) explained:

A cause of action is something logically and legally different from the type of damage suffered as a result of the facts giving rise to the cause of action. The fact that a claim can be described as one for personal injuries does not mean that it is not an action for assault, for example. Since they are different things, the description of the cause of action on the one hand and the damage alleged in consequence on the other, are not mutually exclusive categories of causes of action, but instead overlap and intersect.’

39. The vast bulk of actions for trespass to the person and assault will also be, and will be properly described as, actions for personal injuries. He continued to explain the effect of the proviso in s. 4(1)(i), as follows (at para. 29):

‘The phrase “other cause of action” in s. 4(1)(i) means therefore in my view a cause of action other than that in which personal injuries are claimed. Once this is understood much of the conceptual difficulties and complications disappear. The question then becomes whether this is one of those rare cases in which the claim is for damages for assault and trespass to the person not resulting in personal injury. Self-evidently this is not so. The claim for personal injuries is alleged to have been suffered as a result of an assault. The claim is accordingly one for personal injuries and consequently a civil action captured by the Act of 2003’.

40. That logic, if applied to claims for mental distress or anxiety, takes one to the

conclusion that if those disturbances constitute personal injuries for the purposes of the 2003 Act, all claims – no matter whether in contract, or defamation or false imprisonment – in which such damages (whether described as ‘primary’ or ‘secondary’ matters not) are claimed must be the subject of authorisation from PIAB. While some reference was made in the course of oral argument to the prospect that a claim for relief of this kind if ‘secondary’ was not one in which it was ‘intended’ to claim damages for personal injury, this cannot be correct. Apart from the fact that the reference to intention is in the provision because proceedings have not been commenced at the point at which PIAB is considering granting an authorisation, once it is proposed to claim relief which is within the definition of personal injury, the claimant must be taken to intend to make such a claim. The fact that this is “secondary” to other damages is neither here nor there. And if claims for distress and anxiety were personal injuries for that purpose, it would expand the scope of the 2003 Act (and the role of PIAB) beyond recognition.

Murray v Budds

41. While these factors would point to the conclusion that the term ‘personal injury’ as it is used in the 2003 Act does not encompass claims for emotional distress, upset or anxiety that do not constitute a psychiatric injury and that, accordingly, can neither complete the tort of negligence nor constitute recoverable damage in any other action in tort, the decision of this Court in Murray v. Budds, at the very least, suggests otherwise. The decision was, understandably, at the centre of the defendant’s arguments in this appeal, and it thus merits separate, and careful, analysis.

42. It is necessary to start with the decision of the Court of Appeal ([2015] IECA 269). The plaintiff’s claim was for negligence and breach of contract on the part of solicitors who represented him in criminal proceedings. Most of his claim was struck out as a collateral attack on the outcome of the jury trial which had resulted in his conviction for serious offences. However, although not originally pleaded, one of his complaints was that the defendants had failed in good time to retain a replacement for counsel who had withdrawn from the case, and that this resulted in the plaintiff experiencing worry and stress in the immediate run up to his case. The High Court permitted him to amend his proceedings to include a claim to that effect. The defendants objected to this on the basis that the claim was statute barred by reason of s. 3(1) of the Statute of Limitations (Amendment) Act 1991, and that the new claim was unsustainable as the law did not allow recovery for worry and stress simpliciter. Those objections defined the issue before the Court of Appeal.

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 (3rd 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 33rd 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 statutebarred. 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 nonmaterial 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.