InjuriesBoard.ie

An Overview

11/1/2008

HAMILTON TURNER SOLICITORS

  1. Introduction

Under the Personal Injuries Assessment Board Act 2003, anyone intending to seek compensation for a personal injury (other than a personal injury arising out of medical negligence) must make an application to InjuriesBoard.ie, formerly known as the Personal Injuries Assessment Board (PIAB). InjuriesBoard.ie handles personal injury claims relating to motor accidents, accidents in the workplace and claims involving public liability.

  1. What should I do following an accident?

As soon as possible following an accident you should contact the Respondent (A Respondent is the term we use to describe the person or entity against whom a claim is being made) and notify them of your intention to make a claim. It is advisable to notify the Respondent, in writing, within two months of the accident.

To make a personal injuries claim you then need to submit an application to InjuriesBoard.ie.

  1. Application to InjuriesBoard.ie

The following documentation is required for you to complete your application to InjuriesBoard.ie:

  • A completed application form( Form A )
  • A medical assessment form(Form B ) completed by your treating doctor.
  • Payment of €50 being the application fee.
  • Details of all special damages[1]

4.Time Limits to make a Claim?

The first step in any Personal Injury Action is to consider the Statute of Limitation. This is the time within which the person who has been injured can issue proceedings. A person who has been injured has 2 years from date of knowledge to institute proceedings, in accordance with the Courts and Civil Liability Act 2004

The two year statute of limitations ‘clock’ stops running once the application is registered by PIAB. The ‘clock’ doesn’t start again until six months after PIAB has issued an authorisation to go to court.

There are exceptions[2] to this for persons under 18 years of age and some other categories of cases. You are advised to submit your completed Application to InjuriesBoard.ie as soon as possible and well before the expiry of the two year period.

  1. Time Frame

In the majority of cases an assessment of the claim will issue within 9 months from the date the Respondent (the person or entity against whom a claim is made) agrees to the InjuriesBoard.ie process. However due to the delay that can arise in receiving medical reports and vouching special damages this time period can be longer.

6.What happens when InjuriesBoard.ie receives my completed Application?

InjuriesBoard.ie will examine the Application and supporting documentation. Only when all required documentation has been received by InjuriesBoard.ie can they proceed.
When the Application is complete i.e. application, medical assessment form and €50 fee received, they will acknowledge the date of receipt and confirm your Application number.

InjuriesBoard.ie will notify the person you hold responsible for your injury (the Respondent) of your intention to make a claim against them. The Respondent will be provided with a copy of your Application Form and also a copy of your Medical Report.

The Respondent has 90 days to confirm whether or not they consent to the assessment of your claim. If they receive consent from the Respondent they will proceed with the assessment of your claim.

If the Respondent does not consent to the assessment of your claim they will issue an Authorisation[3] permitting you to pursue your claim through the Court system if you so wish.

Once all required documentation has been received by InjuriesBoard.ie they will proceed with the assessment of your claim. Normally an assessment comprises of General Damages[4] and Special Damages[5].

7.How is an Assessment made?

InjuriesBoard.ie assesses Damages on the same basis and by reference to the same principles as Damages measured by the Courts. They base there assessment on the medical report(s) submitted by your treating doctor and the report(s) of the independent medical examiner(s) when sought by InjuriesBoard.ie.
They then assess the claim based on all medical evidence provided and having regard to the Book of Quantum[6]

8.Evaluation of Medical information

When the Claimant submits an application they must also provide a copy of their treating doctor's medical assessment form (Form B) in relation to the injury sustained. A copy of this medical assessment form is sent to the Respondent, with the Formal Notice.

When necessary the Injuries Board arrange an independent medical examination for the Claimant, the cost of which is borne by the Respondent, or their insurance company.

  1. What happens when InjuriesBoard.ie completes the Assessment?

Claimant

InjuriesBoard.ie will let the Claimant and the Respondent know in writing the amount of the Assessment, i.e. the level of compensation being awarded. The Claimant has 28 days from the date of receipt of the notice of Assessment to confirm in writing whether they accept or reject the Assessment.

  • If the Claimant accepts the Assessment, you must acknowledge this in writing to InjuriesBoard.ie.
  • If the Respondent also accepts the AssessmentInjuriesBoard.ie will issue an 'Order to Pay'. This has the same status as an award of Court.
  • IfInjuriesBoard.ie do not receive your reply in writing within the 28 days, you will be deemed to have rejected the Assessment.
  • If either of the parties reject the assessment then InjuriesBoard.ie will issue an Authorisation which allows the Claimant pursue their claim through the Court system, if they so wish.

Respondent

On completion of the Assessment InjuriesBoard.ie will issue to the Respondent (or their insurer) and the Claimant a Notice of Assessment confirming the amount of the Assessment i.e. level of compensation being awarded. The Respondent has have 21 days from the date of receipt of the Notice of Assessment to confirm whether you accept or reject the Assessment.

  • If the Respondent accepts the Assessment, they must acknowledge this in writing to InjuriesBoard.ie within 21 days of receipt of the Notice of Assessment.
  • If the Claimant also accepts the Assessment InjuriesBoard.ie will issue an 'Order to Pay'. This has the same status as an award of Court.
  • If InjuriesBoard.ie do not receive a reply in writing within the 21 days, the Respondent will be deemed to have accepted the Assessment. In the event that the Claimant has accepted the Assessment the Respondent will be liable to pay the Claimant the amount of the Assessment.
  • If either of the parties reject the Assessment then InjuriesBoard.ie will issue an Authorisation which allows the Claimant pursue their claim through the Court system, if they so wish.
  1. Exception to Injuries Board Procedure

Since the establishment of PIAB, now called InjuriesBoard.ie, Claimants are not entitled to issue court proceedings in civil actions but must apply firstly toInjuriesBoard.ie to have their claim assessed. Exceptions to this rule are:-

  • claims arising out of a medical or surgical procedure (medical negligence);
  • claims where aswell as damages for personal injuries there is a bona fide intention to pursue damages in respect of other causes of action (such as for example slander);
  • Garda compensation claims made under the Garda Siochana Compensation Acts, 1941- 1945;
  • claims where it is alleged that there has been a breach of a provision of the Constitution;
  • claims pursued under Section 3 of the European Convention on Human Rights Act, 2003;
  • claims which involve the Motor Insurers’ Bureau of Ireland as a Respondent / Defendant, does not appear to be covered by the PIAB Act which specifically only applies to a civil action by a person against another person arising out of that others ownership, driving or use of a mechanically propelled vehicle.

Discretion not to arrange an Assessment

Under Section 17 of the PIAB Act, PIAB can exercise its discretion not to arrange an assessment and this may occur where:-

  • there is no case law or a sufficient number of settlements in relation to a particular type of personal injury to which the claim relates;
  • the medical issues in the claim are particularly complex involving the interaction between a number of different injuries including pre-existing conditions;
  • the injuries consist wholly of one part of psychological damage, the nature and extent of which it would be difficult to determine in an assessment;
  • there is a bona fide claim for aggravated or exemplary damages;
  • the claim arises out of a trespass to the person;
  • the gravity of the injury is such that there is a real danger that the Claimant might die and an early trial would be ordered;
  • the period of time for making the assessment would have to be deferred beyond nine months (in order that a long term prognosis in respect of the injury can be made);
  • the person purporting to act as Next Friend or Guardian or Respondent has a conflict of interest;
  • the claim is of a type which PIAB has the consent of the Minister for Justice, Equality and Law Reform declared that there are good and substantial grounds for its not arranging an assessment.
  1. Costs

Part of the motivation behind InjuriesBoard.ie is to remove the cost of legal advice from the personal injuries process. Much of the criticism directed at InjuriesBoard.ie has been on the basis that it is unjust to Claimants / Plaintiffs to deny them the cost of seeking advice from lawyers.

Section 7 sub section 1 of the PIAB Act specifically states that nothing in the PIAB Act can be read as effecting the right of any person to seek legal advice in respect of his or her claim. Initially InjuriesBoard.ie refused to deal with solicitors acting on behalf of Claimants. However this was deemed to be unconstitutional in the case of Declan O’Brien .v. PIAB Ireland and the Attorney General.

With regard to the Claimant being entitled to his or her costs, it seems that it will be a natural progression that the issue of legal costs will be the subject of the next action taken against InjuriesBoard.ie as it would seem to follow that if an applicant is entitled to seek legal representation, they are equally entitled to their legal costs if successful in the InjuriesBoard.ie process.

Medical Report Fees

Originally InjuriesBoard.ie gave a contribution of €150 towards a medical report. InjuriesBoard.ie now include the cost of one medical report in a Claimants special damages. Only one reasonably priced General Practitioners report is automatically covered once vouched for. A reasonable report is said to cost between €200 - €300. If any extra reports are needed the claimant must have sufficient reasons for obtaining them and the InjuriesBoard.ie has a discretion to include them as an item of special damage. InjuriesBoard.ie only request one report and if they feel necessary in order to complete an assessment will obtain a specialist/consultants report for which the claimant is not liable.

  1. Settlement and Assessment

There is nothing in the PIAB Act which precludes a Claimant or his or her solicitor from settling the claim with any of the Respondents or their insurers at any stage in the InjuriesBoard.ie process. Again however, Claimants must take into account that any legal costs associated with the settlement of their claim may be taken from settlement amount in accordance with any agreement entered between the Claimant and his or her solicitor.

  1. Changes introduced by Civil Liability Act 2004

The Civil Liability and Courts Act 2004 (the Act) introduced significant changes to the procedures to be applied in bringing a personal injury action. The Act, together with the establishment of the Personal Injury Assessment Board (PIAB), extensively overhauled personal injury litigation in Ireland.

A New Era in Personal Injury Litigation

The rationale for the new change in procedure was to improve the efficiency and efficacy of a personal injury action. Several changes have been introduced by the Act and a greater emphasis is now placed on case management by the courts from the outset. The following procedures apply where a case does not come within the ambit of PIAB or where a plaintiff or respondent does not agree with an assessment awarded by PIAB and either has applied to PIAB for authorisation to proceed to court.

Notification of Claim

The Act provides that where a claimant has suffered an injury, he or she must notify the alleged wrongdoer in writing, within two months of the date of the cause of action, or as soon as practicable thereafter. The notification of claim must contain a summary of the wrong alleged. Failure to promptly send a notification of claim may have adverse cost implications for the claimant at the conclusion of the action.

A Personal Injury Summons

A personal injury summons must now issue where a person wishes to initiate a personal injury action. The summons must contain the full details of the claim and details of the special damages sought.

Affidavit of Verification

The affidavit of verification is a new and significant development in personal injury proceedings. Section 14 of the Act requires that an affidavit of verification must be sworn by a claimant to a personal injury action who makes any assertion or allegation in pleadings, or who provides further information to a defendant in the course of such an action, to swear an affidavit verifying those assertions or allegations or further information. The affidavit must be lodged within 21 days of the service of the pleading concerned.

The Act is, however, mostly silent as to who should swear an affidavit of verification. It does specify that where an affidavit is verified on behalf of an infant, a person of unsound mind, next friend or committee the affidavit, in respect of assertions, allegations or further information, of which the deponent of an affidavit does not have first-hand knowledge, it should state that he or she believes the assertions, allegations or further information, to be true.

Providing False or Misleading Evidence

The Act provides that it is an offence for a person to give, or dishonestly cause to be given, false or misleading evidence, instructions, or information to a solicitor or to an expert witness. A court may dismiss a claim where there has been misleading evidence and/or there has been a false verifying affidavit. Breach of the offence can result in a fine of up to €100,000 and/or imprisonment for up to 10 years.

Early Settlement Encouraged

Any party to an action may request the court to direct that the parties have a settlement meeting, referred to as a mediation conference. A request may be made where either party is of the view that such a meeting would assist in settling the action. It is important to fully comply with an order of the court to conduct a settlement meeting, as failure to do so may have cost implications. Furthermore, any notes etc that are taken by the chairperson of a mediation conference are confidential and may not be used in evidence in any proceedings, whether civil or criminal.

Both parties to an action are now required to notify the other side of the terms of a proposed settlement offer. The offer is to be lodged into court but the judge will not be made aware of it. At the conclusion of the action, the court may have regard to the terms of the settlement offers when considering costs.

These changes greatly increase the speed with which personal injury litigation now occurs in Ireland. Ongoing case management, coupled with the encouragement of early settlement (and corresponding cost penalties for non-compliance) ensure that personal injury litigation progresses in an efficient and cost-effective manner.

  1. New Changes In Personal Injuries Cases – Personal Injuries Assessment Board (Amendment) Act 2007

PIAB promised us reduced costs, no delays in processing a claim and all around improvement for the parties involved in the hotly debated area of Personal Injuries. The new provisions contained in the Personal Injuries Assessment Board (Amendment) Act, 2007 would make you question those promises. They make two significant changes to the PIAB process that will heavily influence a claimant into accepting an award from PIAB instead of going to court. Unfortunately, in doing so, PIAB have handed the power to the side typically with the most cash and the least to lose, namely, the respondents.

The first change as invoked by section 51A means that if an award from PIAB is rejected by a claimant but is accepted by a respondent, and the claimant subsequently goes to court and is awarded by the Court, less than the PIAB award or if the claimant reaches a settlement for less than the PIAB award, he cannot be awarded his costs and the judge has discretion to award a portion of or the full amount of the respondent’s costs against the claimant. Basically, the claimant’s costs will come out of his award, and maybe those of the respondent too if the Court exercises its discretion under s 51 A (3). This change will certainly affect the ability or willingness of a claimant to exercise his or her right to go to Court if they feel that the PIAB award does not adequately compensate them for their losses, whatever they may be. The most worrying aspect of this change is that it does not provide sufficient flexibility. For example, if you make a claim for personal injuries against a respondent and at the time of making your required application to PIAB, your medical expert informs you that your injuries are unsettled and accordingly their medical opinion is not conclusive until such injuries do settle, then you will face a difficult dilemma in deciding whether or not to accept an award handed down by PIAB based on inconclusive medial evidence or to bring the matter to the ordinary courts, particularly now in light of the risk of tough costs implications if you decide to go to court.

The second change is effected by section 51B and it provides, less drastically, that if a claimant goes through the PIAB process and later issues proceedings, he cannot be awarded the costs of having to go through the PIAB process and will have to discharge these costs himself from his award.

The ultimate effect of these changes is that claimants will bediscouraged in going to Court on the basis that the Courts nowrepresent a very risky option in terms of costs.

15.Conclusion

The role of InjuriesBoard.ie is to make assessments of compensation without the necessity of legal advice or court proceedings. Whilst it is the Plaintiff’s choice not to seek legal advice, it would appear that any Claimant who does so is putting himself / herself at a disadvantage, especially in circumstances where there is more than one Respondent and where liability is in issue. It is important to bear in mind that liability can be put in issue subsequent to the Respondents participating in an assessment and therefore liability potentially remains in issue in every case until it is settled or determined by the courts.