The Zen of Personal Injury Claims in Ireland

personal-injuries-ireland

Have you suffered a personal injury?

At work?

In a public place?

In a car crash?

What is a Personal Injury?

The definition of a personal injury is contained in the Civil Liability Act, 1961 and is a very wide definition: personal injury” includes any disease and any impairment of a person’s physical or mental condition, and “injured” shall be construed accordingly.

Most cases of personal injury claims arise from breach of duty and/or negligence.

Causes of Injury

The most common causes of personal injuries arise in

Types of Personal Injury

Injuries can be to any part of the body but the most common ones are neck and back injuries and broken limbs.

Psychological and psychiatric injuries such as depression and post traumatic stress can also form part of a personal injuries claim.

In the last few years in Ireland, other types of injuries have become actionable eg asbestos claims, army deafness, sexual abuse injuries, blood transfusion claims etc.

Statute of Limitations

A personal injuries claim after March, 2005, arising from nuisance or breach of duty or negligence, can be brought after 2 years from the date:

on which the cause of action accrued or

when the plaintiff first had the requisite knowledge as defined in section 2 of the Statute of Limitations (Amendment) Act, 1991.

2.(1) For the purposes of any provision of this Act whereby the time within which an action in respect of an injury may be brought depends on a person’s date of knowledge (whether he is the person injured or a personal representative or dependant of the person injured) references to that person’s date of knowledge are references to the date on which he first had knowledge of the following facts:
(a) that the person alleged to have been injured had been injured,
(b) that the injury in question was significant,
(c) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty,
(d) the identity of the defendant, and
(e) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For the purposes of this section, a person’s knowledge includes knowledge which he might reasonably have been expected to acquire—
(a) from facts observable or ascertainable by him, or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.
(3) Notwithstanding subsection (2) of this section—
(a) a person shall not be fixed under this section with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice; and
(b) a person injured shall not be fixed under this section with knowledge of a fact relevant to the injury which he has failed to acquire as a result of that injury.

However, the limit is 6 years for injuries arising from assault and battery.

Damages in Personal Injuries Actions

General Damages

These are intended to cover compensation for pain and suffering resulting from injuries which you sustained in your accident. There is an estimator on the website of injuriesboard.ie which is the online version of the PIAB Book of Quantum.

General damages are intended to compensate for

  • general pain and suffering
  • loss of expectation of life
  • loss of amenity.

General pain and suffering can include physical injury and pain, fear, anxiety, depression, embarrassment, lack of enjoyment in life, psychiatric illness and symptoms.

General damages may be divided into two parts, depending on the case and the Court:

  1. pain and suffering to date
  2. pain and suffering expected into the future.

Lower courts may award just one global figure however.

The Courts are obliged to have regard to the guidelines set down in the Book of Quantum referred to above. However, Judges will attribute different weighting to it in making their decision.

Special Damages

Special Damages are any expenses that you have incurred as a result of an accident which can be vouched such as loss of earnings, doctors fees, hospital bills etc. Future loss of earnings will also be factored in and they will need to be calculated by reference to an actuarial report.

Special damages claims are usually made on the basis of out of pocket expenses incurred to date and future loss which will be an estimate of expenses of the injured party into the future.

Loss of earnings

Past loss of earnings is one of the biggest parts of a special damages claim.

An injured party is entitled to recover the net loss of income as a result of the injury. Any social welfare payments received during the period out of work must be deducted from the claim.

Self employed persons usually base their claim on their annual accounts.

Difficulties can arise where the injured party’s pre accident income was not fully declared to Revenue. This income will be disregarded by the Court when assessing loss as provided for in section 28, Civil Liability and Courts Act,2004.

The act also provides that any charitable donations made to the injured party as a result of his injuries will not be deducted in assessing his loss.

Future loss of earnings

Future loss of earnings will be calculated by an actuary and capitalised as at the date of judgment. The Plaintiff must prove this future loss of earnings as a result of the injuries suffered.

Medical and hospital expenses

The Plaintiff is entitled to recover all medical expenses reasonably incurred as a result of the accident. This will include

  • physiotherapy costs
  • doctors fees
  • medication.

For future medical expenses, an actuary report will be required.

Taxation of Personal Injuries Awards

Compensation awards are treated as capital receipts from a taxation perspective and are exempt from taxation.

However, the taxation of income earned from an investment of a compensation sum received will depend on whether the injured person is permanently and totally incapacitated or not.

The Injuries Board

The Personal Injuries Assessment board (now the Injuries Board) was set up to assess claims and in an attempt to reduce the costs of accident claims which had spiraled out of control.

They are the first port of call if you have an accident claim and if you reject the assessment of your personal injuries then you will be issued with a letter of authorization from them which will allow you to pursue your claim through the courts.

You do not need a solicitor to make a claim to the Injuries Board.

However getting a solicitor to pursue your claim on your behalf, advise you throughout, advise on the assessment by the Injuries Board, and ultimately bring personal injuries proceedings in Court where necessary is strongly advisable.

Personal injury lawyers would be very familiar with the litigation of personal injury proceedings through the courts and the need to obtain updated medical reports, loss of earnings reports, actuarial reports etc. which will be critical to the success of your personal injury claim.

On many occasions the case won’t actually get into court and there will be personal injury settlement meetings and/or negotiations which will require the assistance of a personal injury solicitor to ensure that you get the best outcome to your claim.

Personal injury claims in Ireland are handled by the Injuries Board, also known as the Personal Injuries Assessment Board. The Injuries Board was set up by the Personal Injuries Board Assessment Act, 2003.

One important thing to understand at the outset is the Injuries Board does not attribute liability to any of the parties. It simply puts a monetary value on the personal injury suffered. This is called “making an assessment”.

(Liability for any accident or personal injury is closely connected to negligence. Discover what negligence is here).

How the Injuries Board Works

The Injuries Board operates a paper based system and makes awards in respect of personal injury claims based on medical reports and the Book of Quantum which gives guidelines about damages for personal injuries.

What Claims Do the Injuries Board Deal With?

The type of claim that the Personal lnjuries Assessment Board deals with are set out in section 3 of the Personal Injuries Assessment Board Act, 2003:

3.—This Act applies to the following civil actions—
(a) a civil action by an employee against his or her employer for negligence or breach of duty arising in the course of the employee’s employment with that employer,
(b) a civil action by a person against another arising out of that other’s ownership, driving or use of a mechanically propelled vehicle,
c) a civil action by a person against another arising out of that other’s use or occupation of land or any structure or building,
(d) a civil action not falling within any of the preceding paragraphs (other than one arising out of the provision of any 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).

Making and Responding to Personal Injuries Claims

How to respond to a personal injuries claim and respond to the  injuries board is something which many small business owners will have to encounter at some point.

It is important to note that where liability is denied or contested by the person against whom you are making a claim the Injuries Board will issue an authorization allowing you to initiate Court proceedings and their involvement is at an end.

It is useful to understand how the personal injuries system works.

How to Make a Personal Injuries Claim

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.

As soon as possible following an accident you should contact the Respondent 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 which you can do online or by post.

You need to send in to injuriesboard.ie

  • A completed application form (Form A) which can be submitted online or by post.
  • A medical assessment form (Form B) completed by your treating doctor. This can be submitted by you online or by post.
  • Payment of a fee of  €45.

How long do I have to make a Claim?

Generally within 2 years of the accident (but there are exceptions eg if you were under 18 when you were injured)

How long does it take to process a claim?

Normally injuriesboard.ie will issue an assessment within 9 months of receiving the application.

If the injured claimant is under 18 he/she will need a ‘next friend’ to make the claim for him/her and all of the necessary forms can be found online at injuriesboard.ie

Before a person under the age of 18 can receive an award of payment following an assessment, his/her payout must be firstly approved by a court.

When the Application is complete i.e. application, medical assessment form and €45 fee received, injuriesboard.ie will acknowledge the date of receipt and confirm the 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 injuriesboard.ie 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 injuriesboard.ie will issue an Authorisation permitting you to pursue your claim through the Court system if you so wish.

What Is an Assessment?

Normally an assessment comprises of General Damages and Special Damages (the latter are vouched expenses such as doctors bills, hospital fees, loss of earnings etc.)

InjuriesBoard.ie will arrange, where necessary, an Independent Medical Examination shortly after the Respondent has consented to the assessment of your claim.

Generally InjuriesBoard.ie will inform you or your representative of the appointment with the Independent Doctor within four weeks of the Respondent having consented to the assessment of your claim.

The Respondent has 90 days from the date that injuriesboard.ie issues the Formal Notification to consent to the claim. If you have not received an appointment within four weeks of this date you should contact InjuriesBoard.ie or your representative for further information

An Independent Medical Examination is arranged to ensure that the Assessment of your claim is based on the most accurate and up to date information available and that this Assessment reflects the true value of your claim.

It will ensure that you receive the correct level of compensation.

If full up to date information in relation to your injuries is not available together with all of your out of pocket expenses your assessment will not reflect the full value of your claim.

A copy of the Independent Medical Report(s) received by InjuriesBoard.ie will be issued to you with our Notice of Assessment.

In cases involving minors, persons of unsound mind and fatal injuries cases any assessment, if accepted, must be brought before Court to have the assessment ruled/approved.

Personal Injuries Assessment Board Assessments

How is the assessment made?

The claim is assessed on the basis of the medical examination/report and the book of Quantum which you can access on injuriesboard.ie

If you accept the Assessment, you must acknowledge this in writing to InjuriesBoard.ie.

New Book of Quantum-October 2016

The Injuries Board have published a new book of quantum in October, 2016. It covers some new injuries which were not covered before, for example food poisoning, loss of an eye, concussion.

Awards and Orders to Pay

If the Respondent also accepts the Assessment injuriesboard.ie will issue an ‘Order to Pay’. This has the same status as an award of Court.

If you do not 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 you pursue your claim through the Court system.

In deciding whether to accept an award or not, the following must be considered:

section 51 A of the Personal Injuries Assessment Board (Amendment) act 2007 provides that if the claimant rejects the award and the respondent accepts, and if that award is not subsequently exceeded in subsequent legal proceedings, then no award of costs can be made to the claimant and the Court may exercise its discretion in awarding costs against the claimant.

Data has shown that the majority of refused Injuries Board awards are exceeded in subsequent legal proceedings.

What is an Authorisation?

An Authorisation is a legal document issued to you which entitles you to pursue your action through the Courts system, if you so wish. Bring this to your solicitor if you decide to reject the award of injuriesboard.ie

An Authorisation will be issued if:

The Respondent has declined to let the claim proceed to assessment from the outset

Or

The Assessment has been rejected by either you or the Respondent.

Respondent’s reaction

The respondent should advise his insurance company as soon as possible and when he receives the Formal Notice from injuriesboard.ie either the respondent or insurance company of the respondent can deal with the matter with injuriesboard.ie

The respondent can agree and accept the claimant’s application and agree to assessment by injuriesboard.ie who then issue an order to pay which has the same effect as a court order.

If the respondent does not agree then he can reject the assessment and injuriesboard.ie will issue an authorisation for the claimant to pursue his claim through the courts.

Costs of Injuries Board Claims

The Injuries Board attitude to awarding costs is unclear as they will only do so where the applicant is ‘vulnerable’. However there is no legal definition of ‘vulnerable’.

So a solicitor’s costs in respect of a personal injuries claim to the Injuries Board will more than likely have to be paid out of any award to the claimant.

Legal Proceedings-Personal Injuries Actions

A personal injuries action is defined in the Courts and Civil Liability Act, 2004, section 2 as:

“personal injuries action” means an action for the recovery of damages, in respect of a wrong—
(a) for personal injuries,
(b) for both such injuries and damage to property (but only if both have been caused by the same wrong), or
(c) under section 48 of the Act of 1961,

It also covers fatal injury actions.

Personal Injuries Summons

All personal injuries actions must be commenced by way of a personal injuries summons which will need to contain

  • the plaintiff’s name and address
  • PPS number
  • the defendant’s name and address
  • the injuries that the plaintiff allegedly sustained
  • all items of special damage
  • full particulars of the acts of the defendant which caused the wrong
  • full particulars of each instance of negligence of the defendant.

See section 10 Civil Liability and Courts Act, 2004.

A personal injuries action will also involve

A personal injuries summons and defence must be verified by an Affidavit of Verification which obliges each party to swear the truth of all allegations, assertions, etc.

Lodgment of money into Court

Lodgement of money into Court in a personal injury action is provided for in Order 22, Rules of the Superior Courts. These rules are different from those allowing lodgments in other Court actions.

In a personal injury action a defendant may make a lodgment at the time of delivery of the defence or within 4 months of the date of the notice of trial.

Formal Offers

Formal offers are provided for by section 17 of the Civil Liability and Courts act, 2004.

Both plaintiff and defendant must make an offer of settlement to each other at some time between the issue of proceedings and before the expiration of 2 weeks after the service of the notice of trial. These letters of offer must be filed in the relevant Court office.

The Judge, at the subsequent hearing of the case, will consider the terms of these offers and take them into account when making an order for costs of the action.

Setting down for trial

To set the case down for trial in the High Court the Plaintiff’s solicitor must serve a Notice of Trial and lodge, in the Central Office of the High Court,

  • The notice of trial
  • A setting down docket
  • A book of pleadings.

The procedure is slightly different in the Circuit Court, and differs also from Dublin to provincial courts, but will commence with a Notice of Trial.

Disclosure in personal injuries proceedings

Disclosure relates to the admission in evidence of information, documents, reports, or statements. There are Court rules covering disclosure-S.I. No. 391/1998 – Rules of the Superior Courts (No. 6.) covers disclosure in High Court cases.

There are more relaxed procedures in respect of disclosure in Circuit Court and District Court actions with no formal rules, as such. It would be normal for the Plaintiff’s solicitor to send their medical reports to the defendant’s solicitor some weeks before the hearing with a request that they be admitted into evidence without the need for formal proof.

The County Registrar will also encourage the sides to agree reports prior to the trial.

Disclosure procedure

This is initiated by the Plaintiff’s solicitor who must produce a schedule listing all reports from experts intended to be called, generally within one month of the service of the Notice of Trial. This obligation relates only to reports of witnesses who will be called as expert witnesses.

The defendant’s solicitor must then produce his schedule within 7 days. Then the parties exchange copies of the documents listed.

The parties will also exchange statements of special damage, witness names and addresses, vouchers re special damages, statements from the Department of Social Protection, and any other relevant documents.

 

It may occur that a plaintiff has no expert report to exchange, but the other party must deliver any report intended to be relied upon.

There is a continuing obligation to disclose and if a party fails in their disclosure obligations then the other party can apply to Court for directions in this regard. The Court can make any order it sees fit.

False and Misleading Evidence

Section 25 of the Civil Liability and Courts Act, 2004 makes it an offence to give false and misleading information/evidence in a personal injuries action. Section 26 deals with a fraudulent action.

Co-Defendants and Third Parties

If the Plaintiff sues more than one person on the basis that he claims one or more people were responsible for his injuries, he will issue proceedings against all the parties. These parties are known as co-defendants.

On the other hand, if the Plaintiff sues one party and that defendant claims that a third party is the person responsible for the plaintiff’s claim, then the defendant will wish to join that third party as a party to the proceedings.

The Defendant can only do so with the consent of the Court. The Defendant must issue proceedings to join a third party as soon as is reasonably possible (section 27, Civil Liability Act, 1961) and will be seeking a contribution or indemnity from that third party.

Third Parties and the Injuries Board

When a party consents to the Injuries Board procedure for assessment, he is said to be a ‘participating party’.

However, where there is more than one respondent, you may have a situation where some respondents agree to assessment and some don’t. In this case, the non participating parties are ‘non participating parties’ and a letter of authorisation will issue to enable legal proceedings to be taken.

In this situation, the injured party will have to pursue two different routes: one through the Injuries Board procedure and the other through the Courts. Any assessment is not binding on the non participating parties.

Concurrent Wrongdoers

Concurrent wrongdoers are defined in Section 11 of the Civil Liability Act, 1961:

11.—(1) For the purpose of this Part, two or more persons are concurrent wrongdoers when both or all are wrongdoers and are responsible to a third person (in this Part called the injured person or the plaintiff) for the same damage, whether or not judgment has been recovered against some or all of them.

Concurrent wrongdoers are each liable for the whole of the damage suffered (Section 12, Civil Liability Act, 1961)

12.—(1) Subject to the provisions of sections 14, 38 and 46, concurrent wrongdoers are each liable for the whole of the damage in respect of which they are concurrent wrongdoers.

Note: In contentious business a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

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