Defective Products and The Injuries Board

InjuriesBoard.ie, formerly known as the Personal Injuries Assessment Board (PIAB), is an independent statutory body set up under the Personal Injuries Assessment Board Act 2003 to assess claims for anyone who has been in an accident and suffered an injury. All personal injury claims in Ireland (except for cases involving medical negligence) must be submitted to InjuriesBoard.ie.

The Role of the Injuries Board

  • The Board provides an independent assessment of personal injury claims for compensation following road traffic, workplace or public liability accidents. Where the person responsible (the respondent) does not consent to InjuriesBoard.ie assessing your claim for compensation, InjuriesBoard.ie will allow you to pursue your claim through the courts and will issue an authorisation allowing you to do so.
  • If the respondent does not agree to an assessment by InjuriesBoard.ie or if either side rejects the Board’s award, the matter can then be referred to the courts.

 

Medical Negligence Cases

  • As I have set out at the outset, cases involving medical negligence do not first need to be submitted to the Injuries Board and proceedings can be issued without an authorisation. Section 3 (d) of the Personal Injuries Assessment Act 2003 provides that personal injuries which arise from a medical procedure do not require an authorisation to issue proceedings.
  • This exemption applies to the provision of a health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person.

 

Defective Products

  • However, a recent High Court case has stated that a plaintiff must first submit their claim to the Injuries Board and receive an authorisation before issuing proceedings where the personal injury arises out of a defective product even where it was used in a medical or surgical procedure.
  • The relevant case was that of Murphy v DePuy International Limited (2015) IEHC 153.
  • This case involved the insertion of the DePuy ASR resurfacing hip implant system by way of a procedure at the Galway Clinic in 2005.
  • The plaintiff tried to argue that they had received this implant in the course of orthopaedic advice and treatment from their orthopaedic surgeon and so that it fell within the exemption in Section 3 (d) of the Personal Injuries Assessment Board Act 2003 in that it was within the provisions of a health service to the plaintiff and so no authorisation was required.
  • The defendants maintained that the plaintiff was precluded from maintaining her claim for personal injuries as she failed to obtain an authorisation from the Injuries Board to maintain her claim.
  • Faherty J in the High Court considered the submissions by both sides and found that the plaintiff’s grounds of claim related to the manufacture and provision or supply by the defendant of an alleged defective hip implant system.
  • He went on to say that there were no allegations against the defendant that they were negligent in the provision of any health service to the plaintiff or that they carried out any surgical or medical procedure on the plaintiff in a negligent manner or it negligently provided any medical advice or treatment to the plaintiff. Therefore, this case could not fall within the exemption in Section 3 (d) of the 2003 Act.
  • The Judge found that an authorisation from the Injuries Board was required in this case.

 

Failure to Obtain an Authorisation from the Injuries Board

  • It is important to remember that if an authorisation is not obtained, the Court does not have jurisdiction to hear the claim.
  • This was found in Sherry v Primark Ltd (2010) 1IR 407 where it was stated that Section 12 (1) of the 2003 Act provides that an application must first be brought to the Injuries Board for an authorisation before Court proceedings could issue.
  • The reasoning behind this was said to be that Section 12 (1) operates as a jurisdictional rather than procedural provision so that a Court does not have a jurisdiction to permit the commencement of proceedings in respect of a relevant claim until the foregoing procedures under the 2003 Act have been exhausted.
  • Therefore, a Court has no jurisdiction to hear a claim if an authorisation is not obtained where the personal injuries arise out of a defective product. It is a full defence to a claim to say that no authorisation was obtained.

 

Statute of Limitations

  • Another problem that a potential plaintiff might face is if the statute of limitations is due to expire shortly before they might discover an error in the way that they have brought an action. The Statute of Limitations for personal injuries is 2 years from the date of the cause of action or in certain instances 2 years from the date of knowledge of the cause of action.
  • If one does not make their application to the Injuries Board within this time limit, their action will be statute barred.

If you would like any further information in relation to this or any related matter, please do not hesitate to contact me on (01) 6797930 or email Katie@brophysolicitors.ie and I will be happy to assist you.

Katie Nugent

 

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