J W O'Donovan Solicitors - News & Publications - Personal Injuries

Personal Injuries Assessment Board Act 2003
Civil Liability and Courts Act 2004
Personal Injuries Assessment Bard (Amendment) Act 2007

Accidents happen and persons are injured. Whilst, often times, little can be done to put the person back in the position they were in before the injury, the person can, and ought to be compensated for the costs of their medical treatment, the loss of income they have and will endure, and the pain they have suffered. In addition it would seem just that the costs of seeking this compensation ought not to be borne by the injured party.

The Personal Injuries Assessment Board Act 2003 was enacted on the 28th December 2003 and applies to all personal injuries actions from the 22nd July 2004. 1. It established the entity known as the Personal Injuries Assessment Board (PIAB), and fundamentally altered the way injured persons seek compensation from those who have caused their injuries. Subsequent to the 2003 Act, the Civil Liability and Courts Act 2004 and the Personal Injuries Assessment Board (Amendment) Act 2007 further altered claimant’s access to, and amount of, compensation.

Prior to the PIAB, an injured person would instigate legal proceedings through the Courts system. The determination of the Court would be binding on both parties and the costs of the proceedings would generally be borne by the unsuccessful party. 2.

The 2003 act changed all that, by inserting as a compulsory intermediate step, an application to the PIAB.

Under the 2003 Act a person may not go to court unless they have received an ‘authorisation’ from PIAB. In summary, PIAB will only grant an authorisation where, either;

·	The applicant has gone through the PIAB process, or

·	The applicant falls within one of the several cases set out in section 17 of the act; i.e. - the applicant has sustained complex and serious injuries - the claimant may be dying - the claim arises out of trespass to the person. - the claim consists partly or wholly of psychological damage

To instigate the PIAB process, the applicant completes an application form and submits it with his/her medical reports and the €50 application fee. It is very important that the application form is completed correctly, and especially important that the defendant is correctly identified. Accordingly companies office searches should be undertaken prior to completion of the form. PIAB then write to the respondent to ascertain whether they will submit to an assessment. The respondent has 90 days to decide. If the respondent agrees to the assessment he will pay a €1,000 fee and PIAB will proceed to assess the application. If the respondent declines then the applicant will be given an authorisation and may go to court.

Assessments proceed on the basis that the respondent is 100% to blame, and accordingly PIAB only assess the level of damage suffered by the respondent rather than the relative blameworthiness of the parties. PIAB will then issue its assessment. Either party may reject the assessment, at which point the applicant will be granted an authorisation and may go to court. However, liability will once again become an issue as the respondent’s deemed admission of responsibility applies only in the PIAB process. Details of the rejected assessment cannot be raised in court.

Multiple Respondents/Defendants
In many situations there are multiple respondents/defendants. Where they do not all submit to PIAB assessment, the applicant will be granted an authorisation only in respect of the respondents who have not submitted and will have to pursue his/her claim simultaneously through the courts and PIAB.

Time
With PIAB came the promise of faster assessment and settlement of claims. The 2003 Act sets an initial time-limit of 9 months on the PIAB to assess the claim from the date of receipt of the respondent’s consent to the process. Thereafter the Board can extend the time a further 6 months. After 15 months, the applicant can insist on the Board issuing him/her with an authorisation.

Statute of Limitations
The Civil Liability and Courts Act 2004, reduced the period of time in which a person can take a compensation claim from three years to two years. 3. Failure to take a claim within the prescribed period results in the claim being ‘statute barred’, a term which means the claim can no longer be made. 4. The rationale behind a limitation period is to ensure that the ability of a defendant to defend the claim is not unjustly prejudiced by the passage of time, i.e. failing memories, death of witnesses, loss or destruction of evidence. However it is difficult to defend a reduction in the limitation period from three years to two years on this basis. Especially when one considers that the full extent of the injury may not have become immediately apparent to the injured party.

Interaction between the Statute of Limitations and PIAB
The two year statue of limitations ‘clock’ stops running once the application is registered by PIAB. 5. The ‘clock’ doesn’t start again until six months after PIAB has issued an authorisation to go to court.

Fraudulent Claims
The 2003 and 2004 acts contain several provisions to combat fraudulent claims. The 2004 Act requires plaintiffs to swear a ‘verifying affidavit’ to the truth of any averments or allegations made in pleadings. A person who makes a false statement shall be guilty of an offence and shall be liable to a fine of up to €100,000 or of up to 10 years imprisonment. The 2003 Act allows for the establishment by the Board of a database of claimants. Such a database shall record their names, and details of the accident, and their insurance company.

Costs
Generally, under the Courts system, ‘costs follow the event’ such that the wrongdoer pays the injured party’s costs of seeking compensation in addition to the compensation itself. 6.

The 2003, 2004 and 2007 Acts have seen a dramatic erosion of this position, with the injured party increasingly being expected to bear the costs of seeking compensation.

PIAB does not award costs. Accordingly the applicant must pay from any award that he/she receives the costs of making the claim. Such costs would include the fees for acquiring legal advice and medical reports.

Where the applicant refuses the PIAB assessment and goes to court the 2004 Act sets out that he/she may be penalised on costs if he/she had not within 2 months of the wrongful act which caused the personal injury written (by registered post or personal service) to the defendant and informed him/her/it of his intention to make a claim.

Under the 2007 amendment act, if an applicant refuses the PIAB assessment and subsequently receives a lesser award from a court he/she will not be entitled to his/her costs and further may be required to pay the defendant’s costs.

The 2007 act also set out that a successful plaintiff before the courts will not be entitled to the costs of making the initial application to PIAB. Accordingly the costs of making the compulsory application to PIAB must always be borne by the injured party (However the costs might be taxed on the ‘party and party’ basis rather than the ‘solicitor and own client’ basis and so the successful party may still have to pay some of his own sides costs).

In a lecture prepared for the Law School of the Law Society of Ireland in 2007 Stuart Gilhooly examined the development of PIAB. He reported that PIAB has received approximately 40,000 applications lodged, and made 7,000 awards. PIAB has released approximately 50% of all applications by way of authorisation. Of the applications which are fully processed and where awards are made, the acceptance rate of those awards is approximately 60%. Accordingly PIAB have made awards in no more than 30% of cases.

Certain insurance companies have become known for approaching applicants directly rather than going through the applicant’s solicitor. The danger this presents for applicants is that they might inadvertently settle proceedings for an inferior amount of compensation. Accordingly, any applicant who receives such an offer ought to consult with his/her solicitor prior to accepting same.

PIAB was heralded as a more efficient and cost effective method of processing claims and was introduced amongst a background of publicity regarding fraudulent claims.

It is perhaps too early to comment on the full impact of the reforms. However one must express concern that in its enthusiasm to be seen as combating fraud and reducing the costs of insurance the legislature has neglected to give due regard to the position of injured parties and introduced measures which have the effect of hindering their access to, and reducing their quantum of, compensation.

1. With the exception of certain types of claims, ie medical negligence.
2. The ‘costs follow the event’ rule.
3. As and from the 31st March 2005, or for claims before that date a period of 3 years from the accident which ever is the lesser.
4. Rather the claim can be made, but the Defendant will raise the Statute of Limitations as a defence.
5. The clock doesn’t stop when the application is made, but rather when it is registered by PIAB. Accordingly the applicant could be prejudiced by a delay on PIAB’s part.
6. However the costs might be taxed on the ‘party and party’ basis rather than the ‘solicitor and own client’ basis and so the successful party may still have to pay some of his own sides costs.