Since 2004, the vast majority of personal injury claims must first of all be submitted to the *Injuries Board. If it is believed that the injuries were caused by an uninsured motorist then the claim must be first of all submitted to the Motor Insurers Bureau of Ireland (MIBI).
The main thinking behind the introduction of the Injuries Board was not necessarily to reduce the amount of compensation payable to the injured person but instead to reduce the costs involved in litigation with two sets of solicitors and several barristers.
We have no problem with this but clearly there is still a very urgent need for specialist legal advice where a person has suffered a serious injury and is dealing with an organisation such as the Injuries Board.
There are a number of difficult questions involved in personal injury litigation and in connection with running your claim through the Injuries Board and we will help to answer some of those questions.
When should I submit my claim?
All claims arising from a *personal injury must be submitted within two years from the date when the cause of action accrued or from the date when the plaintiff first had the necessary knowledge as defined by section 2 of the Statute of Limitations (Amendment) Act, 1991.
The majority of claims arise from motor accidents and the relevant period therefore is two years from the date of the accident.
The Injuries Board changed its name in 2008 and while the official title is the Injuries Board, it is still sometimes known as PIAB.
It should also be noted that claims made to the Motor Insurers Bureau of Ireland must also be submitted to the PIAB.
What type of accidents are covered?
The vast majority of injuries following from road traffic accidents are covered. This includes injuries to pedestrians and injuries to passengers as well as injuries to drivers. It also covers injuries caused in any kind of motor vehicle including a motor bike and including a bicycle.
If you suffer an *injury at work or an injury on a farm then you may have a claim. Many accidents are caused on construction sites (although not so many nowadays!). All these claims must be submitted to the Injuries Board.
It should be noted from the outset that the injury is not necessarily limited to something that shows up on an x-ray. Injuries can be psychological in nature and can often refer to parts of the body such as tendons or muscles or nerves where damage might not necessary show up on an x-ray.
What type of damages am I entitled to?
The Injuries Board have an excellent section on their website called the Book of Quantum. This gives a good general idea of the type of damages they are likely to award in the different type of injuries that come before them.
In our experience, PIAB do not tend to become involved in cases where the injury is purely psychological in nature. Otherwise the Book of Quantum is a good guide to the type of damages you will get if your claim is dealt with exclusively by PIAB.
How are damages calculated?
The main aim of this area of litigation is to compensate a person for an injury they have suffered. This type of compensation is known as general damages. Awards can vary but the highest figure is awarded in cases where “catastrophic” injuries are suffered.
Many people believe that very serious injuries will receive awards running into millions of Euro. This is not the case. Judge Quirke in the High Court case of Maggie Yung v. MIBI dealt with the question of a cap on general damages. Prior to this case, it was felt that the maximum sum anybody could be awarded by way of general damages was in the region of €350,000. Judge Quirke however said that where catastrophic injuries occur, there should be no cap placed on the amount of general damages awarded. He said that each case should be decided on its merits. However in practice it is extremely rare indeed that any case will attract general damages in excess of €400,000. There are however other areas of damage you can claim in addition to general damages.
Special damages are claims for losses incurred prior to any hearing or prior to any decision and also include future losses that can be clearly ascertained.
If you have incurred actual expenses up to the date of trial then these expenses should be able to be quantified. They cover matters such as loss of earnings, medical expenses, travel expenses etc. If specialist medical assistance or nursing assistance was required or if some form of home help was required then these expenses can also be claimed.
In addition to past loss of earnings, a person can claim future loss of earnings. In order to do so, a reliable and comprehensive medical report will have to be obtained clearly setting out why the claimant’s ability to earn into the future might be impaired. It is also often necessary to seek a report from a rehabilitation consultant or an expert, who can set out what type of employment and what type of earnings a person may be able to do following an injury and following the best recovery possible. This element of a claim can be extremely significant given that future loss of earnings can effectively last for a life time if the injuries are genuinely serious.
If a person trains for many years and is a very skilled chef or a carpenter and suffers a serious hand injury, then future loss of earnings can be extremely significant even though the injury itself might seem to be relatively insignificant. The same applies if a professional musician was no longer able to play a particular musical instrument or could not sing.
It is relatively easy to ascertain past medical expenses but it can be difficult ascertain future medical expenses but with very serious injuries, future expenses can be extremely substantial and may for instance involve the expense of a full time or part time carer. A house may have to be adapted to cater for a person who has suffered serious injuries or a car may have to be adapted accordingly.
An area of controversy exists in relation to hospital expenses where there has been substantial litigation concerning the amount a person can claim on behalf of a hospital for treatment they have received in the past. We can advise specifically on this area if required.
Is a personal injury award subject to taxation?
The award itself is not taxable but if you invest it, then any interest gained is taxable. There is an exception to this rule in cases where there has been permanent or total incapacity arising from an injury and a person is unable to maintain themselves. A claim will have to be made to the Revenue Commissioners to obtain a certificate to this effect and very strong medical evidence will be required. It will not be sufficient to show that the injuries were serious or even life threatening – the injury must result in permanent and total incapacity.
Do I need a solicitor if I submit my claim to the Injuries Board?
We would very strongly advise all clients to obtain expert legal advice concerning a claim submitted to the Injuries Board. They do not give legal advice. Their job is simply to process paperwork and make a paper award based on the content of a medical report and any other relevant documentation submitted to them. They do not hear evidence. You have to know what type of damages you are entitled to claim and you have to know whether or not any award made is sufficient and acceptable.
There can be serious difficulties if there is a psychological element to any claim as in our experience PIAB will only make awards in cases where there is a physical injury as well as a psychological injury. They do not tend to make awards where there is psychological injury only. In our experience there is very often a psychological impact in very many accident cases.
PIAB and the insurance companies do their best to prevent solicitors becoming involved in claims but the Supreme Court have determined that the Injuries Board must deal with a claimant’s solicitor if the claimant instructs them to do so.
A claimant has to be extremely careful to ensure that the appropriate paperwork has been submitted to the Injuries Board.
A person claiming can be penalised if they do not send a written warning notice to the alleged wrong doer within two months from the date of the accident. This letter should set out the nature of the wrong alleged and if it is not sent, the claimant can be penalised by having costs awarded against him/her and can have their ultimate award reduced.
The Injuries Board Form A must be submitted and this is a critical document and must also refer to a medical report. Again, the medical report is critical and you must ensure that all relevant information is covered in the medical report and that it is as comprehensive and accurate as possible.
The medical report and Injuries Board form A must be sent along with the standard Injuries Board fee to the Injuries Board at P.O. Box 8, Clonakilty. Co. Cork.
In order to come within the two year Statute of Limitations period, you must have all relevant paperwork submitted to the Injuries Board and in addition, you must receive from them a written acknowledgement that they have received documents. Otherwise the statute continues to run and your claim could be statute barred.
Once the claim is accepted, the Injuries Board will then write to the other side and ask them if they wish to have the Injuries Board adjudicate on the claim. If they do not, then the claimant can issue their own court proceedings.
Once the Injuries Board make an award, the other side have 21 days to accept the award and unless a positive response is received, then it is assumed that the award is rejected.
If the award is accepted then the order to pay has the same effect as a court judgment.
You have to be very careful in deciding whether or not to accept an award made by the Injuries Board because if you reject it and the matter subsequently proceeds to a fully contested court hearing and the eventual award is less than the amount awarded by the Injuries Board, you could be penalised by having to pay your own legal costs or costs might actually be awarded against you and you may have to pay the other side’s costs. Legal advice at this stage is absolutely essential.
*Personal Injury Summons
If for whatever reason the claim is not dealt with by the Injuries Board then a claimant can issue a Personal Injury Summons. This covers all cases whether they are dealt with in the District Court, Circuit Court or High Court. The Personal Injury Summons sets out full details concerning the plaintiff, the accident complained of and the injuries and damages suffered.
It must also set out full particulars concerning the negligence alleged.
The defendant will then usually raise a Notice for Particulars and on foot of this document, a plaintiff will generally have to reveal his/her accident or claims history.
If the defendant or the court is misled in any way under this heading, a plaintiff can have his claim dismissed or can be penalised by having the claim reduced or costs being reduced or awarded against him.
Once satisfactory Replies have been received to the Notice for Particulars, a defendant will lodge a Defence and if necessary, a Counterclaim.
All parties are required to lodge Affidavits of Verification in personal injury actions. This places a greater onus on all parties to prevent fraudulent claims and cover all proceedings issued after 31st March 2005.
A defendant, and in particular an insurance company, will often lodge a sum of money into court stating that they believe that this sum is sufficient to cover the claim. A defendant can make a lodgement either when they are lodging their defence or within four months from the date of the Notice of Trial. These time periods can be amended with permission from the court. If a lodgement is made and the case proceeds to trial and the plaintiff does not obtain a settlement in excess of the lodgement, then the judge (who will not have known beforehand, that the lodgement has been made) can penalise the plaintiff by reducing or refusing to order the defendant to pay the plaintiff’s costs.
All of these new procedures are set out in the Courts & Civil Liabilities Act of 2004. Another method whereby settlement is encouraged is the procedure of formal offers where proceedings issued after 31st March 2005. The Act says that the plaintiff and the defendant must make an offer of settlement to each other at some time between the issue of proceedings and before the expiration of two weeks after the service of the Notice of Trial. If a formal offer is not accepted, the judge, after he has made his Order, will consider the refusal and whether or not it was reasonable and will take this into account when making a decision concerning costs.
This Act also introduced the concept of mediation into *personal injury actions and either side can request a mediation conference at any time prior to trial.
Once the defence has been lodged, the question of D iscovery may arise. Discovery is the process whereby one party calls on the other party to prepare a list of all documents relative to the claim and subsequently, if required, hand over copies of such documents.
Once all pleadings have concluded, then the case is set down for trial and the following documents have to be lodged with the Central Office:
i. Setting down docket and Notice of Trial.
ii. Evidence of service of the Notice of Trial.
iii. Book of Pleadings.
iv. Solicitor’s letter certifying that the Book of Pleadings are true copies of the originals.
Once these documents have been sent into court, the case will be given a list number and the case will be given a hearing date in due course.
* In contentious business a solicitor may not calculate fees or other charges as a percentage or proportion of any settlement.