Is distress, upset or anxiety a form of personal injury? - Supreme Court to hear appeal that will impact future of personal data breach claims
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Overview
It has been confirmed that the much-anticipated Supreme Court hearing of the appeal of the decision of Dillon v Irish Life [2024] will be heard on the 17 December 2024.
In the Dillon case, Mr Patrick Dillon (the Plaintiff) issued proceedings in Dublin Circuit Court seeking non material damages under the GDPR for distress, anxiety, upset and inconvenience as a result of an alleged breach of his personal data. The Plaintiff alleges that Irish Life (the Defendant), with whom he held a life assurance policy, incorrectly sent six letters concerning his life policy to a third party between May 2008 and May 2020. The Defendant issued a Motion to strike out the Plaintiffs case for failure to obtain an Authorisation from the Personal Injuries Assessment Board (PIAB) (now known as the Injuries Resolution Board) and/or an Order under section 10(3) of the Civil Liability Act 2004 prior to issuing his proceedings.
Authorisations are a statutory requirement under the Personal Injuries Assessment Board Act 2003 (2003 Act) in any matter where a claimant wishes to pursue a claim for personal injury. Personal Injury is defined in the Civil Liability Act 1961 as ‘any disease and any impairment of a person's physical or mental condition’. It was successfully argued by Irish Life that this definition would encompass a claim for distress, anxiety and upset, and on 3 May 2022, the Circuit Court dismissed the Plaintiff’s action. Mr Dillon appealed this decision to the High Court and that appeal was heard by Mr Justice O’Donnell who, in April 2024 ultimately upheld the decision of the Circuit Court and again dismissed the appeal.
When making a claim for a personal injury, claimants are required to commence their action by making the application to the Injuries Resolution Board within two years. It has been more than two years since the last letter issued in error from Irish Life so the impact for Mr Dillon in this case is, if he is not successful and has not already commenced a new action, he will now be prevented from doing so.
Mr Dillon successfully sought leave to appeal this decision to the Supreme Court. The scope of appeal was limited to the question of whether a claim for damages under data protection law comes within the scope of the 2003 Act, whether the requirements of the 2003 Act are compatible with Data Protection Law and whether distress, upset or anxiety are a form of personal injury.
In contemplation of the potential outcome of this appeal a significant number of data breach claims, which were issued without an Authorisation from the Injuries Resolution Board have been stayed pending the Supreme Court’s decision on this point of law.
Given the uncertainty surrounding claims for non-material damages in Ireland, this decision will likely have a significant impact on these types of claims and how they are dealt with by the Irish Courts.