Personal Injury Claims | Terry Gorry & Co. Solicitors

Personal Injury Claims Changes from Jan & April 2019

Some changes have been made to the way in which personal injury claims are to be pursued in Ireland; some of the changes commenced in January 2019, others from April 2019.

Let’s take a look.

Section 8 of the Civil Liability and Courts Act 2004 provides that a letter of claim must be served within 2 months of the date of the cause of action. From January 2019 this has been reduced to 1 month.

The amended section 8 also states that the court hearing the action shall draw such inferences as appear proper from the failure to serve the letter; it was the case that the court “may” draw such inferences.

Here is the amended section 8:

Letter of claim.

8.—(1) Where a plaintiff in a personal injuries action fails, without reasonable cause, to serve a notice in writing, before the expiration of F1 [ one month from the date of the cause of action, ] on the wrongdoer or alleged wrongdoer stating the nature of the wrong alleged to have been committed by him or her, F1 [ the court hearing the action shall ]—

( a) draw such inferences from the failure as appear proper, and

( b) where the interests of justice so require—

(i) make no order as to the payment of costs to the plaintiff, or

(ii) deduct such amount from the costs that would, but for this section, be payable to the plaintiff as it considers appropriate.

(2) In this section “date of the cause of action” means—

( a) the date of accrual of the cause of action, or

( b) the date of knowledge, as respects the cause of action concerned, of the person against whom the wrong was committed or alleged to have been committed, whichever occurs later.

Verifying affidavit

Section 14 of the Civil Liability and Courts Act 2004 provides for a verifying affidavit. This section is changed as follows:

(4A) Where there is a failure to comply with subsection (4) , the court hearing the personal injuries action concerned shall—

(a) draw such inferences from the failure as appear proper, and

(b) where the interests of justice so require —

(i) make no order as to the payment of costs to the party responsible for the failure, or

(ii) deduct such amount from the costs that would, but for this subsection, be payable to the party responsible for the failure as it considers appropriate. ]

These changes came into effect from 28^th January 2019.

Personal Injuries Assessment Board (Amendment) Act 2019

This act commenced on 3^rd April 2019. Some of the “highlights” include:

Section 51C provides that the Court may penalise claimants and respondents as to costs where they have not complied with a request made by the PIAB assessors for additional information or documents; to provide assistance to experts retained by the PIAB or furnish information or documents or co-operate with those experts; or for the claimant to submit himself or herself to a medical examination.
A medical report is not now necessary with the application to the Injuries Board to stop the clock from running for the Statute of Limitations; submitting form A is sufficient and PIAB will serve a preliminary notice on the respondent but will not serve the formal section 13 notice and commence the 90 day period until a medical report is received.

Here is the Personal Injuries Assessment Board (Amendment) Act 2019 in full.

Woman Walks Into Lift Door at Work and Sues Her Employer for Personal Injuries

This personal injuries case involves a woman who worked in Abbott Ireland in Clonmel since 1999 and who injured her head as she entered a lift at her workplace in 2014. She was speaking with a colleague as she entered a lift and was looking away from the lift doors towards her colleague.

The woman, Geraldine O’Grady, gave evidence that she expected the lift sensor to prevent the door from closing on her and that she had previously heard a voice over would give a warning that the doors were closing. She was struck on the head by a lift door and suffered a haemotoma (a localized bleeding outside of blood vessels).

Ms O’Grady went on holidays shortly after this incident and suffered headaches and had bruising on her face. When she went back to work she suffered from loss of concentration and headaches.

She also claimed to have suffered from post-concussion syndrome, post-traumatic stress, flashbacks, feared she was going to die, and her confidence was affected.

High Court personal injuries action

Ms O’Grady brought High Court personal injury proceedings claiming the employer was negligent, had failed to provide a safe place of work, had failed to provide a safe system of work, had breached health and safety regulations, and breached the contract of employment.

She claimed the employer was negligent by reason of its failure to have the lift emit a sound when the doors were closing, the lift doors were an excessive width, and so forth.

Justice Creedon’s decision

Justice Creedon found that only 40% of lifts nationwide are fitted with voice warnings. She also held:

“Beyond the home, doors are part of everyday life and automatic doors are no exception. They are commonplace in buildings of every nature. Automatic doors are encountered in every type of public building including hospitals, schools, courts and offices.”

She found the employer was not negligent and that Abbott was not in breach of the reasonably practicable test by reason of its failure to locate a sensor on the outer doors.

The Health Safety and Welfare at Work act 2005 provides that the employer must take whatever steps are ‘reasonably practicable’ for section 8 provides, inter alia,

8.—(1) Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees. (Section 8 Safety, Health and Welfare at Work Act, 2005).(Reading the full section 8 will give a good idea of the employer’s duties under this act).

In summary Justice Creedon held that the injuries sustained by Ms O’Grady were by reason of her own inadvertence and failure to pay attention when entering the lift.

Absolute duty on employers?

Justice Creedon rejected the argument that there was an absolute duty on employers to ensure the safety of employees and referred to section 8 (1) (set out above) referring to the employer’s duty to ‘ensure, so far as is reasonably practicable’ the safety of employees.

She also pointed to the employee’s obligations for her own safety set out in section 13 of the Safety, Health and Welfare at Work Act, 2005.

This case is Geraldine O’Grady –v- Abbott Ireland [2019] IEHC 79.

Awards for Whiplash Injuries in Ireland 4.4 Times Higher Than England and Wales-New Report

It is often claimed that the level of awards in personal injuries claims in Ireland is laughable and out of step with the rest of the developed world. A ‘compo culture’ is a phrase that is regularly thrown around but is there any truth in this?

A new report form the Personal Injuries Assessment Board (PIAB) which gives the data for the first six months of 2018 certainly supports this view. It tells us that the level of award in Ireland is 4.4 times that of awards for similar injuries in England and Wales.

For the first 6 months of 2018 the average award in Ireland for a whiplash type injury for the driver of a car in a car accident was €20,800 which breaks down to a figure of €19,066 for the injury itself-that is, general damages-and €1,734 for special damages-that is, out of pocket expenses.

Interestingly female victims were awarded a little more than males.

A whiplash type injury is one that involves soft tissue injuries to the neck, upper back, shoulders, and strains/sprains of the spine.

The figure for non-whiplash injuries for the first 6 months was €27,386; this would include more serious injuries than whiplash-for example, fractures, sprains, and so forth.

The report from PIAB also shows that 70% of claims in car accident claims for the same period were whiplash related.

It is hard to understand why Irish victims of these types of injuries enjoy one of the highest rates of compensation in Europe and 4.4 times that of England and Wales.

A former President of the High Court, however, has warned that the system in Ireland is open to abuse because the chances of a fraudulent claimant being prosecuted for making a false or exaggerated claim was “virtually zero”.

Meanwhile, we are all financing this system with higher insurance premiums virtually every year we renew our motor insurance policy.

Learn more about personal injury claims in Ireland, how awards are assessed, court proceedings, what are general damages, special damages, how does the Injuries Board work, and more.

Personal Injury Awards Reduced by Court of Appeal-How Are General Damages to Be Quantified?

How do you value an injury you have suffered?

Can a person who has lost a limb such as an arm or leg or been rendered quadriplegic be truly put in the position they enjoyed before the accident by an award of damages?

Nevertheless, This is the task of the Courts in personal injury cases and the avowed goal is to put the person who has suffered the injury in the same position they would have been in if the injury had not occurred. Most people would say that this is not possible.

Nevertheless, this is what happens at the end of a successful personal injuries claim.

The amount or quantum of damages is a controversial topic with many members of the general public and the insurance industry saying the awards are far too high whilst victims and their families have a diametrically opposed view.

In 2016, in a Court of Appeal Case called Shannon -v- O’ Sullivan [2016] IECA 93 the Court of Appeal gave some much needed guidance as to how the amount of these awards should be arrived at.

The facts in Shannon v O’Sullivan

The defendant in this case appealed against what she saw as excessive awards to Mr. and Mrs. O’Sullivan arising out of a road traffic accident in November, 2012. The High Court in Kilkenny had awarded Mrs. Shannon €50,000 in respect of pain and suffering to date, €80,000 in respect of pain and suffering into the future and agreed special damages of €1,463, a total of €131,463.

Mr. Shannon had been awarded €91,463, made up as to €35,000 in respect of pain and suffering to date, €55,000 in respect of pain and suffering into the future and an agreed sum of €1,463 in respect of special damages.

In the original HIgh Court case the defence robustly challenged the extent of the Shannons’ injuries and their credibility. They did so because they claimed the Shannons did not seek medical attention for some weeks after the collision, they had not gone to their GP but had gone to a retired doctor, had been referred to a consultant psychiatrist in May, 2014 and were only then diagnosed with psychological injuries.

The High Court trial Judge, however, found them to be credible, hard working witnesses and accepted the medical evidence on their behalf. It was on this basis that the awards were arrived at.

The appellant’s case in the Court of Appeal was that the Shannons required little or no medical intervention and the awards of the High Court to both of them were excessive. The injuries were not of such a nature as to deprive either of the Shannons of any quality of life and they continued working at all times after the accident and should not attract awards which would be more appropriate to severe injuries.

The principles to be applied

Firstly, the Court of Appeal accepted that it had not heard the evidence in the High Court and therefore the court of Appeal was bound by the findings of fact in the High court case. The Court of Appeal could only overturn the award of damages if it was unreasonable and disproportionate, or as the Court of Appeal put it: that no reasonable proportion exists between the sums awarded and that which the appellate court itself considers appropriate in respect of the plaintiffs’ injuries.

This issue had been considered in the following two cases:

Foley .v. Thermal Cement Products Ltd (1954) 90 I.L.T.R. 92
Rossiter v. Dun Laoire Rathdown County Council [2001] 3 I.R. 578

The test is whether there is a reasonable proportion between the sum (awarded and the appeal court’s assessment) or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable. However, the Court of Appeal should only interfere with the award if there is a discrepancy of at least 25 % between the amount awarded by the lower court and the Court of Appeal’s view.

In other words, a moderate adjustment will not be made by the Court of Appeal.

Measuring damages

The Court of Appeal noted that the quantification of damages had 3 widely accepted features-it must be:

fair to the plaintiff and the defendant
proportionate to social conditions, bearing in mind the common good, and
proportionate within the scheme of awards made for other personal injuries

The Court of Appeal noted that the goal of damages in personal injury cases is to put the injured party in the position they would have been in if the injury had not occurred. However, the Court of Appeal also recognised that this is unattainable in many cases, especially those of serious injury.

The Court of Appeal held the approach to be taken was to firstly look at the injuries of the claimant and see where they lie on the general spectrum of personal injuries ranging from catastrophic at the top of the range to modest injuries at the bottom.

Catastrophic injuries damages have a limit of approximately €450,000 or thereabouts for general damages. Therefore the Court of Appeal in this case held that the approach to be taken was to start at this limit and work back down to see where on the spectrum the instant injuries lay.

The Court helpfully set out the questions which most judges will be guided by in assessing general damages as follows:

Most judges, when it comes to assessing the severity of any given injury and the appropriate sum to be awarded in respect of pain and suffering to date, will be guided by the answers to questions such as the following:-:

(i) Was the incident which caused the injury traumatic, and if so, how much distress did it cause?
(ii) Did the plaintiff require hospitalisation, and if so, for how long?

(iii) What did the plaintiff suffer in terms of pain and discomfort or lack of dignity during that period?

(iv) What type and number of surgical interventions or other treatments did they require during the period of hospitalisation?

(v) Did the plaintiff need to attend a rehabilitation facility at any stage, and if so, for how long?

(vi) While recovering in their home, was the plaintiff capable of independent living? Were they, for example, able to dress, toilet themselves and otherwise cater to all of their personal needs or were they dependent in all or some respects, and if so, for how long?

(vii) If the plaintiff was dependent, why was this so? Were they, for example, wheelchair-bound, on crutches or did they have their arm in a sling? In respect of what activities were they so dependent?

(viii) What limitations had been imposed on their activities such as leisure or sporting pursuits?

(ix) For how long was the plaintiff out of work?

(x) To what extent was their relationship with their family interfered with?

(xi) Finally, what was the nature and extent of any treatment, therapy or medication required?

In short, a Court must:

However, a judge must act rationally and take into account, in summary, the severity of the injury, how long it has taken the plaintiff to recover, whether it has short-term or long-term consequences and if so the impact on the plaintiff’s life in all its different aspects including his family, his work his sports or hobbies or pastimes, in addition to any other features that are relevant in the plaintiff’s particular circumstances.

Decision

The Court of Appeal disagreed with the High Court judge who found that the plaintiff’s injuries were ‘significant’. The Court looked at the pain and suffering, limitation of lifestyle, pain and suffering into the future, etc. and decided that the injuries were only ‘modest’ when looked at on the spectrum of injuries ranging from minor to catastrophic.

In Mr. Shannon’s case the award of general damages was reduced from €90,000 to €40,000 and Mrs. Shannon’s award was reduced from €130,000 to €65,000.

This decision of the Court of Appeal to reduce the general damages award by 50% or thereabouts is seen as part of a trend involving the Court of appeal reducing personal injury awards.

For example, in Payne v Nugent [2015] IECA 268 the Court of Appeal reduced the general damages award from €65,000 to €35,000 and in Nolan -v- Wirenski [2016] IECA 56 the general damages awarded by the High Court was reduced from €120,000 to €65,000.

It is worth noting that these reductions in this emerging trend, if it is a trend, only apply to general damages awards as special damages awards are to continue to be assessed separately.

If you click on any of the 3 links above you can read the full decision of the Court of Appeal in each case.

The High Court Affidavit of Verification In Personal Injury and Defamation Actions

An affidavit of verification is required in the High Court to verify assertions or facts alleged in personal injury actions and defamation proceedings. It is to verify a pleading or replies to a request for further information and is required pursuant to section 14 of the Civil Liability and Courts Act, 2004 in personal injury actions, and pursuant to section 8 of Defamation Act, 2009.

A copy is served on the party who is being served with the pleading or replies to further information.

(4) An affidavit under this section shall be lodged in court not later than—

(a) 21 days after the service of the pleading concerned or such longer period as the court may direct or the parties may agree, or

(b) in the case of a requirement to which subsection (8)(b) applies, 7 days before the date fixed for the trial of the personal injuries action concerned. (Section 14 Civil Liability and Courts Act 2004).

The form it should take is as follows:

AFFIDAVIT OF VERIFICATION

O. 1A, r. 10

THE HIGH COURT

20…. No……
Between A.B., …………….. Plaintiff,

and C.D., …………. Defendant.

I, AB, ……………….. of …………………. , the (plaintiff, defendant or state other capacity or authority) in the above-entitled proceedings, aged eighteen years and upwards MAKE OATH and say as follows:

1. I beg to refer to the contents of the (personal injuries summons, defence, reply, further information etc. – as the case may be) delivered herein on behalf of the (plaintiff/ defendant) on the ….. day of ………….. 20 …. *[upon which this affidavit is endorsed] *[and upon a true copy of which marked “A” I have signed my name prior to the swearing hereof].

2. The assertions, allegations and information contained in the said (personal injuries summons, etc.) which are within my own knowledge are true. I honestly believe that the assertions, allegations and information contained in the said (personal injuries summons, etc.) which are not within my own knowledge are true.

3. I am aware that it is an offence to make a statement in this affidavit that is false or misleading in any material respect and that I know to be false or misleading.

SWORN etc

It is an offence to make a statement in an affidavit that is false or misleading and you can be fined up to €100,000 and/or imprisoned for up to 10 years, pursuant to section 29 of the Civil Liability and Courts Act, 2004.