Engaging a Personal Injury Solicitor
If you have a valid claim for compensation, an application can be made to the The Personal Injuries Assessment Board (PIAB) now known as Injuries Board – a Statutory Body set up pursuant to the Personal Injuries Assessment Board Act of 2003 (as amended).
Your Solicitor will take instructions from you concerning all aspects of the case and make all necessary enquiries concerning the correct legal identity of the Defendant which is one of the most important aspects of a legal process.
To establish this requires various applications by your Solicitor to various institutions to gather all necessary data and information relevant to your injuries and indeed the correct legal identity of the Defendant (i.e. the person you are bringing a claim against for compensation).
Establishing your medical history
In addition your Solicitor will write to your treating consultant or your General Practitioner requesting a report on your injuries and setting out the history of your attendance, the nature of your injuries the treatment afforded in respect of your injuries and a general prognosis into the future as to how your injury is likely to improve or otherwise. It will usually give an indication of the anticipated duration and the extent of your injury for example six months, a year, two years etc.
In a surprising number of accident cases, a Plaintiff may suffer psychological injuries and if so a referral to a psychiatrist is often required for the purposes of dealing with this aspect of your injury.
Your solicitor will arrange to take up a report if you are suffering from nightmares, sleepless nights, flashbacks, depression associated with the accident etc. This is an important aspect of your case and should be dealt with comprehensively by a competent psychiatrist.
Injury Claim Application Requirements
Your Solicitor will have written to all of the correct Defendants setting out your intention to claim compensation from them as a result of the accident/incident.
Of necessity a copy of this letter will be included with your application. All medical reports are also required detailing every aspect of your case. In addition an application form is also required to be completed by the Plaintiff setting out all the relevant particulars.
In addition to the issue of General Damages (i.e. money damages for pain and suffering to date and into the future), your Solicitor will also deal with the issue of Special Damages (i.e. out of pocket expenses). Such expenses generally are loss of earnings, travel expenses, medical expenses and material damage to your vehicle or clothing etc.
Claims Process Timelines & Procedure
When all of the necessary documents are sent in to the Injuries Board, the Injuries Board will assess them and if they are in order and will acknowledge receipt of the documents and from that date.
The Defendant’s Consent
The Defendant (i.e. the persons you are suing for compensation) have 90 days in which to make up their minds as to whether or not they will consent to the Assessment Board procedure.
It is important to note that if a Defendant consents to the Assessment Board procedure it does not necessarily follow that they will admit the claim in terms of liability and accept that they are responsible.
In some cases where a Defendant consents to the Injuries Board process it is merely a ‘time-buying exercise’ on the part of the Defendant or their Insurance Company to simply defer the issue of determining liability in their final approach to the case.
It should be remembered that certain Defendants and their Insurance Companies use the process to defer the issue of dealing with the case as the Injuries Board process is relatively inexpensive for the Defendant and their Insurance Companies.
Where a Defendant or their insurers consent to the Assessment Board process then the Injuries Board will proceed with their assessment process.
Where a Defendant does not consent, the Injuries Board release the case to the Plaintiff’s solicitor and issue an Authorisation to the Plaintiff’s solicitors which enables the Plaintiff to issue Court proceedings arising out of the accident/incident.
Independent Medical Examination
Where the Defendant(s) consent to the process, the Injuries Board will usually set up an appointment for the Plaintiff to attend an Independent Medical Practitioner to examine the Plaintiff for the purposes of allowing the Board to make an assessment of the amount of damages suitable in their case. This usually occurs within three to four months after the initial 90 day period has elapsed.
Listing Special Damages
In addition, the Plaintiff is required to set out all items of Special Damages, such as loss of earnings, travel expenses, medical expenses, car damage and any other expense that arises because of the accident/incident.
It should be remembered that it is not sufficient to merely set out such details; it is necessary for the Plaintiff to ‘vouch’ the actual expenses incurred i.e. produce receipts for medical expenses and travel expenses etc.
Loss of Earnings
Where a loss of earnings claim is made, it is usually necessary to produce a letter from one’s employer setting out the fact that the Plaintiff was absent from work on the specified days and furthermore that he/she was not paid during this period.
In addition, the letter should also refer to the Plaintiff’s net earnings before the accident/incident.
Where a Plaintiff is self-employed, the issue becomes more complicated and it is usually necessary to produce tax returns and accounts certified by the Plaintiff’s Accountant for a period of two to three years prior to the accident/incident. In addition, it may also be necessary to furnish an Accountant’s Report setting out the extent of the losses.
Deadlines for Assessment
The Injuries Board are usually required to assess the Plaintiff’s claim within a period of one year from the initial application (within 9 months from the date the Defendant consents to the Assessment). In certain circumstances, this can be extended by a further six months where the Board deems it necessary to extend the time in its discretion.
Thereafter, the Board will usually make an assessment in appropriate cases.
The assessment is served on the Plaintiff and the Plaintiff’s solicitor and sets out the breakdown for the Plaintiff. The Assessment is also served on the Defendant and/or their insurers.
- The Plaintiff has 28 days within which to consent or decline the assessment.
- The Defendant has 21 days in which to decide what to do with the assessment.
It is important to note that if a Plaintiff does nothing i.e. does not revert to the Injuries Board, the Plaintiff is deemed to have refused the assessment.
Where the Defendant does not respond to the Board at all, the Defendant is deemed to have consented to the assessment. This is an important distinction.
Exceptions to Injuries Board Process
There are a couple of exceptions to the Injuries Board remit to assess all Personal Injuries Actions.
For exclusive psychological or psychiatric injuries, the Board will not assess such claims. However, where there is a psychological or psychiatric element to a personal injuries claim, it is often the case that the Board will proceed to make an assessment in this matter.
The Injuries Board is also not empowered to deal with medical negligence claims as these are excluded the Personal Injuries Assessment Board Act 2003 as amended.
In general, if a case is complicated in terms of injuries or indeed liability, then the Board will often exercise its discretion and refuse to deal with the case as they are constrained by time limitations (see above).
Accepting or Rejecting an Award Assessment
Where the Injuries Board makes an assessment, this will be served on the Plaintiff and his solicitor and also the Defendant and his insurers.
There are many factors to take into consideration when discussing the adequacy or otherwise of an assessment.
The most important factor is the recovery level of the Plaintiff i.e. has the Plaintiff recovered or substantially recovered from his/her injuries?
This is by far the most important consideration and in circumstances where the Plaintiff is not 70/80% recovered at the date of assessment, then serious consideration should be given to rejecting the assessment regardless of the level of damages awarded by the Board.
In this regard, it is important to note that once an assessment is accepted, it cannot be visited in six months/a year or two years time and accordingly it is of the upmost significance and importance for the Plaintiff to remember that he/she gets ‘one bite at the cherry’ and accordingly they should be satisfied that the amount of compensation adequately reflects the level of damages as the matter can never be revisited once accepted.
It is also important to note that the professional fees incurred by the Solicitor are not specifically paid by the Injuries Board and accordingly these fees will require to be deducted from the Assessment. Fees will vary according to the amount of work involved and undertaken by your Solicitor.
Where a Plaintiff accepts the assessment and the Defendant also accepts the assessment, then the matter is effectively at an end once the compensation is paid by the Defendant or their insurers.
Where a Plaintiff accepts the assessment and the Defendant rejects the assessment then, the Plaintiff has a choice; to forget about the matter entirely or to instruct a solicitor to proceed with issuing Court proceedings which is the usual route for Plaintiffs.
The Solicitor will then instruct Counsel on the Plaintiff’s behalf to draft and issue the necessary proceedings in the appropriate court and the civil litigation process begins in earnest.
Note of Warning
It is of critical importance to note that where a Plaintiff rejects an assessment and the Defendant accepts the assessment and Court proceedings issue and thereafter the Plaintiff proceeds to Court and a Judge makes an award equal to or less than the amount of the assessment by the Injuries Board then, under Section 51A of the Personal Injuries Assessment Board (Amendment) Act of 2007 then the Court will not award you your legal costs incurred in bringing the claim to Court.
In addition, the Court may also exercise its discretion to award costs against you i.e. that you will also be held liable for the Defendant’s costs.
This is of critical importance and the matter should be given a great deal of consideration before a Plaintiff rejects an award in circumstances where the Defendant is likely to accept the assessment.
Statute of Limitations
In general, the Statue of Limitations in Personal Injury actions is two years from the date that the Plaintiff knows that he/she is injured.
This is usually the date of the accident unless some aspect of an injury is hidden or latent and only becomes apparent later on.
It is worth pointing out that two years is not a very long time and accordingly a Plaintiff should make every effort to bring his case to a Solicitor as soon as possible as the Injuries Board process requires medical reports to accompany applications and this may take some time.
In essence, the Plaintiff should act as speedily as possible in order to avoid any complications at a later date.
Child Injury Claims: Persons under the Age of 18
he law is different for persons under the age of 18. In law these persons are called minors and the Rules in terms of taking claims and time restrictions are much easier for minors than they are for persons over the age of 18 who are deemed to be legal adults.
A person under the age of 18 has two years from the date of their 18th birthday to take a claim for personal injuries arising out of an accident during their minority.
For example, a child Plaintiff who incurs an injury at the age of 10 has in fact eight further years plus two years from his/her 18th birthday to take a claim in respect of this particular accident in theory. However, in practice certain difficulties might well arise in taking such a claim and accordingly it is always important to bring a claim for personal injuries at the earliest possible opportunity.
Concept of ‘Next Friend
Where persons are under 18 a parent usually brings the claim for and on behalf of the child.
This parent in legal terms is called a ‘next friend’.
It is important to note that the parent/next friend is liable for costs if the Plaintiff proceeds with his/her case and loses his case in Court or subsequently withdraws from the claim.
In such circumstances the next friend may well be held liable for the costs of the action and accordingly it is important to give the utmost consideration before acting as a next friend and taking a claim on behalf of a minor.
Where minors are awarded money damages by way of Assessment or Court Award or indeed settlement of a case, these monies are paid into Court by the Insurance Company and are invested by the Court services until such time as the injured party attains the age of 18.
Thereafter, these payments immediately on reaching their 18th birthday, the injured child is entitled to be paid the compensation together with any interest that accrued over the intervening years.