Guide to Personal Injury Claims* Q.&A.

What is a Personal Injury Claim* ?

A personal injury claim* is type of legal action taken by a person ie an injured party in an accident who considers that another party in the accident owed them a duty of care, that the defendant breached the duty owed by not exercising reasonable care in the circumstances, and that it was the defendant who caused the persons injury.

Common Personal Injury Claim* legal terms :

What is Negligence ?

In negligence, the neighbour principle was laid down in a case back in 1932 but the Judge in that case outlined the parameters of the duty of care in the following quote “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’’.

Negligence means a party failed to act as an ordinary and responsible party should have acted, and as a result an innocent party was injured.

What is Liability ?

If a defendant in a case is found be negligent and liable, they are held legally responsible for causing the accident and injury.

In a case, it must be proved the offending party owed the injured party a duty of care, that this duty was breached, and that damage resulted from that breach.

In terms of a road traffic accident claim* and work accident claim* a duty of care will exist between the parties before a case commences.

What if Liability has been admitted ?

This is helpful for the injured party, and therefore the offending party has admitted they were at fault for the injury caused. This then should be followed up with action by that person or entity.

What if Liability is in dispute ?

This means that the defendant states no negligence arose, they are not liable, and hence not at fault, and therefore not the legally responsible party to the injured party.

It may be then for a Judge to adjudicate upon same.


Plaintiff

The Plaintiff is the person ie injured party who commences legal proceedings in a case.

Defendant

We all know this, but it is the party the plaintiff alleges is responsible for the negligence and the party who should provide the relief sought.

Litigator

The litigation solicitor acting for the injured party or defendant party.

Quantum

This is how much the claim is valued at. There is information in this post below in relation to this.

Litigation

This occurs once court proceedings commence ie when the summons has been issued.

Brokers

These are companies which seek to find the best insurance deals to then sell insurance products to customers.

MIBI – Motor Insurers Bureau of Ireland

This Bureau is an organisation which has within its role a duty to compensate victims of road traffic accidents that were caused by drivers who either had no insurance or that could not be identified.

Here is an information post which will give you information about this by clicking here.

How do I make a Personal Injury Claim* ?

The injured party must serve notice in writing, before the expiration of one month from the date of the cause of action, or as soon as is practicable thereafter, to the person who caused the accident outlining the nature of the wrong involved etc.

An injured party must apply to the Personal Injuries Assessment Board by filling out an Injuries Board Assessment form called Form A. The applicant or their personal injury* claims solicitor must submit the application form to the Board.

The applicant starts the process by first getting a medical assessment form completed by their doctor and then filling out an Injuries Board Assessment application form. It’s usually available online.

If any costs have been incurred, remember to attach receipts for any financial losses related to the personal injury* with the application to the Injuries Board. Include a copy of correspondence from the person you deem responsible for the injury, and send the application fee. The Board will write back to acknowledge receiving your documents and to give you your application number.

What is the Personal Injuries Assessment Board ( PIAB )

PIAB questions and answers can be seen in the following posts.

and here.

Will I need to attend at the Injuries Board ?.

No. Giving evidence at the Injuries Board for the applicant is not required. The Injuries Board is not a court, has no judicial function, and their assessment will be made based on the medical evidence presented to them plus the persons losses.

Will I need to go Court ?

The Injuries Board is tasked with dealing with personal injury claims* in Ireland. It is not a court and the vast majority of claims are dealt with by the Injuries Board. If the matter is not dealt with by the Injuries Board, the case might proceed to court, and a person may be required to attend court, but it depends on the facts of each case. It also depends on the defendant(s) in the case.

Is my case likely to go to Court ?

The Personal Injuries Assessment Board is tasked with dealing with such claims. In 2018 the Board noted they have assessed 130,000 claims since 2004 and that 60% of the applicants accepted the Injuries Board Assessment.

In essence the vast majority of such claims do not reach court and do not need to go to Court. Court only arises if it is necessary in the circumstances.

How long does one have to make a personal injury claim* ?

If you have been injured due to the negligence of another and wish to pursue an action to recover damages, you must begin this action within 2 years of the accident in question.

This is a strict legislative rule which has an exception for exceptional circumstances only.

Can my personal injury claim* go to mediation ?

Yes, this this is an alternative dispute resolution mechanism that the person can consider and avail of. You can avail of mediators or solicitors to carry out the mediation in an effort to resolve the matter. A medication process can be an effective dispute resolution mechanism, but it requires good will and an intention to deal with an issue by way of agreement.

If proceedings have already begun, the court by its own motion, or a party in the case, can invite the other party to mediation to resolve the dispute.

Will I need to attend a medical appointment ?

Yes. An injured party will likely have already attended with their own doctor or with a hospital doctor, and it will be necessary that a medical report is obtained. It is best, in our opinion, to obtain a medical report from a person’s doctor, as they will likely have a long-standing patient-doctor relationship, so the doctor will know their diagnostic history, any relevant medical history, and can then make their clinical findings on examination of the patient ie injured party in the accident.

Once an application has been made to the Injuries Board, the Injuries Board then will arrange a medical appointment for the case applicant, with a doctor engaged by the Injuries Board, who will have a matching specialism to the injuries of the person. This doctor engaged by the Injuries Board should be located within reasonable distance of where the injured person resides.  

Why would my Solicitor wish to obtain my medical records ?

This is simply good practice. The solicitor can review times, dates, entries in the medical records ie say hospital medical records relevant to the accident, and this can assist the solicitor when reviewing the medical report obtained to ensure matters are correct.  

It is very important the the medico-legal expert who prepares a report has sight of the persons medical records for the preparation of a report.

Your solicitor will only apply for records with your consent.

Will I accept an early offer from an insurance company ?

If you receive an early offer from an insurance company, you should know that the sum offered will be in full and final settlement for your case.

This is important because if, for example, you sustained a fractured fibula or tibia, this injury may require a back slab or cast etc. and you will be required to re-attend with your doctor to see how the treatment is developing.  One of the headings of damages in personal injury claim* cases is general damages, which concerns an assessment of damages for the pain and suffering caused. So to make this simple, if a person accepts an early offer with this injury type, neither the patient or the doctor knows the outcome of the injury/treatment success or not, and it is then impossible to make an accurate assessment of general damages for this person without the full facts.

If a person wishes to accept an early offer in full and final settlement, they are evidently entitled to accept this, but we would say this is imprudent to do so without firstly having the full facts to hand to make an assessment then decision.

How long will the Injuries Board process take ?

In our experience this process takes approximately one year, unless the party responsible for the accident disagrees to the Injuries Board making the assessment at the outset. In this circumstance, court proceedings may need to be instituted.

Can I take Court action for my personal injury claim* ?.

If the matter is not dealt with by the Injuries Board, and you receive the document termed authorisation firstly from the Injuries Board, then a review of the evidence and decision has to be made to bring court proceedings or not. In essence it is a matter for you to decide with advice from your solicitor, if you engage one.

How do I know who was responsible for my accident ?

A person should discuss this with their solicitor, as depending where the accident occurred, searches and checks will need to be conducted. If the accident occurred on a property, land searches may have to be conducted. If it concerns a road traffic accident, and the offending driver it transpires has no insurance after investigation, claim notification will need to be made to the Motor Insurance Bureau of Ireland. A consultation between client and solicitor should take place, and the solicitor will then carry out their investigation.

If my claim is against my employer can I be fired ?

If an employee commences a personal injury claim* against an employer concerning negligence for causing their injury, and the employer terminates an employees employment contract as a result, the employee will be entitled to commence a separate legal action for unfair dismissal under the Unfair Dismissal Acts, which states under S.6 of the Unfair Dismissal Act 1977(as amended) that the dismissal of an employee will be unfair and hence contrary to law, if it results from civil proceedings whether actual or proposed against the employer, which includes for a personal injury claim*.

If my employer caused the injury and is at fault, can I make a claim ?

Employers have many statutory duties regarding safety in the workplace, and there is also a duty of care, but it would be prudent to have the facts reviewed by a solicitor who can then apply the facts to the principles of negligence in tort law, to then give you a legal opinion on your case options.

Can an injured passenger or pedestrian made a personal injury claim* ?

Yes, the same laws of tort and negligence applies to such parties. It may be that the person proceeds against the other driver party involved, and against the driver the car they were travelling in, if it concerns a road traffic accident.

Can I make a claim if I was injured whilst abroad?

We have a separate information post in relation to this question, which can be seen here.

My child has been injured, can I make a claim on their behalf ?

A child or teenager does not have the legal capacity to take a case on their own. It is usually the parent of the child commences a legal action on behalf of the child.

Can I make a personal injury claim* if I was hit and injured by an uninsured driver ?.

The short answer is yes.

We have information post which can be seen here which explains this.

The driver who caused the accident left the scene of the accident. Can I still make a personal injury claim* ?.

Each vehicle driver has a legal obligation to be insured, but also has legal duties on the occurrence of an accident pursuant to S.106 of the Road Traffic Act 1961(as amended) must not leave the scene, must co-operate with the Gardai, and if this does not arise, and the offending driver absconds, and cannot be identified, the injured party can still proceed with their claim by firstly notifying the Motor Insurers Burea of Ireland of their intention to make a personal injury claim*.

Do I need a solicitor to make a personal injury claim* ? .

There is no legal requirement for this.

A legal business is a service based business, and like in any service, it’s simply a decision for the person to make regarding obtaining a service provider or not.

What can I claim for ?

There are two types of damages in person injury claims* a person can claim for, which are the following.  

Special Damages are the financial losses a person sustained as a result of the injury, such  as, income loss and medical bills etc. Personal injuries can affect a persons ability to work, and if injured due to anothers negligence, this item of special damage should be sought in a case.

General Damages concern compensation for the pain and suffering the person had to go through. Yes, this depends on the persons individual injury, duration of the injury, treatment involved etc. but it also includes the effect of the accident on the persons life, such as work, or their home life etc. It is not amenable to a straight forward monetary loss calculation, such as, the special damages loss computation.

What is the value of my claim ?

This is not to be evasive but each claims value is dependent on the individual person/case facts.

The two types of headings of loss are mentioned-above, but what is the persons injury, how long were they out of work for etc. are the type of relevant questions which need to be answered on a case by case basis, before this assessment can be made.

We do have whats termed the Book of Quantum which does provide guidance which can been seen here.

We also have an information post which may be of assistance, which can be seen here.

Questions not answered. I need more information !

Cleary & Co. Solicitors, Personal Injury* Solicitors can be contacted by telephone or email, and we will try answer any question you have.

Disclaimer 

Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute.

Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.

8(b) “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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