This post will give you a guide to understanding the process of making a personal injury* claim.
It is not complicated, but it must be done correctly.
The forum party who deals with such applications is the Personal Injuries Assessment Board.
The Personal Injuries Assessment Board is an independent statutory body who receive applications for personal injury* claims and deals with them. It is not a court, and has no judicial function. Applicants will not be required to attend at the Personal Injuries Assessment Board and giving evidence at the Board is not required.
Applicants will be required to present themselves for a medical appointment assessment arranged with a doctor on behalf of the Injuries Board.
Ensuring your application is submitted within time is imperative, and the application must be completed correctly and with the correct legal title of the parties.
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 date in question. This is a strict legislative rule which has some exceptions for exceptional circumstances.
One must submit their application within the statutory permitted time frame or it can be deemed statute barred.
Letter before Action
Under S.8 of the Civil Liability Act 2004 this is called a ‘Letter of Claim’. A person pursuing an action should serve notice in writing to the other person within 1 month of the date of the accident of their intention to pursue this course of action.
If it’s possible in the circumstances do obtain the details of the other driver in relation to a car accident or a cycling accident and take note of the registration of the car. It’s more difficult for the Gardai to investigate this if there is no registration detail or no witnesses, for example.
Preservation of Evidence
It is very important to retain all evidence. Many people are unsure at the oustset what they wish to do if negligence arises and they are injured. This is understandable. Many people will never have been involved in a case before and wonder if it would be a good experience or not. It is useful to retain all evidence while you are thinking about what you wish to do, and then ascertain what your legal options are before making a decision.
If a case is taken, your solicitor might need to make an early application for the preservation of evidence, as it can be lost quickly, therefore it is important to retain the evidence you have and obtain a case opinion from a solicitor as early as is possible, if you are considering a case. Your solicitor can then proceed to request that the evidence is retained from the other party. Some companies have policies in place to keep CCTV, for example, only for a relatively short period of time, so it is imperative to try and obtain this as soon as is possible, if it is relevant to a case.
This is the application form to the Injuries Board. This is a four page application form. It is not a complicated form to complete, but it must be completed correctly. The correct factual details must be specified on the form with the correct legal title of the party responsible for the accident. Searches should be conducted to ensure one has the correct legal title of the respondent.
The application to the Injures Board can be submitted by post or online with the applications administration fees being €90 or €45 depending on whether it has been submitted by post or online.
A medical report must be submitted with your application and this can be completed by your doctor on whats called Form B. Your doctor will likely know about Form B and have prepared a report previously using this document format. The medical report will include information regarding accident details, injuries sustained, medical history, complaints, clinical findings and possibly prognosis.
When you receive the medical report you should go through its content and make sure it is correct and reflective of your injuries.
Insurance Company Correspondence
Once you put the party responsible for the accident on notice of your intention to make a personal injury* claim, it is likely you will receive correspondence from an insurer, if there is insurance in place.
The insurer will proceed to carry out their own investigation of the accident and engage a loss adjustor and possibly a claims investigator to prepare a report.
Road traffic accidents should be reported to the Gardai. If you have been involved in a road traffic accident, or witnessed one, you might receive a letter with a witness information form from the insurance company requesting detail about the accident, the drivers involved, registration numbers, insurance details etc. You can furnish Garda Station details to the insurance company, as the investigating Garda will have retained the particulars of the accident detail.
Once the Injuries Board have received the application, they will furnish the s.50 confirmation letter, which is very important, as it acknowledges registration of the claim with the Injuries Board and you will receive a claim number.
This acknowledgement letter will be dated and so is important for comfort that the claim was registered within the required timeframe.
Section 13 Notice
The Injuries Board will then send notice of the application to the alleged wrongdoer and he/she has 90 days to consent/reject ie advise of their position. The Injuries Board will send a copy of the injured person’s application with this notice and or any other accompanying documents. If the respondent party does not respond to the Injuries Board within the required timeframe, they will proceed to deal with the application.
The Injuries Board will after this period begin their assessment, if the alleged wrongdoer does not reject this outright. In that case court proceedings can begin.
9 Month Period
The Injuries Board must make their assessment within 9 months of receiving the alleged wrongdoers consent to assessment. Once the assessment decision is made the alleged wrongdoer is given 21 days to accept the award or there’s deemed acceptance. The applicant is given 28 days and if no response is received, is deemed to accept the award.
Award of Pay
If all the parties agree to the Injuries Board making an assessment of the application, then the Injuries Board will proceed to make an assessment of the claim. This is a monetary sum. The Injuries Board make their decision based on whats called the Book of Quantum, the medical reports on file, and the special damages ie out of pocket expenses of the applicant.
Once the Injuries Board make their assessment ie their decision, they write to the applicant and the party responsible for the accident and await a response from both parties if they agree to the Boards assessment sum or not.
If the injured person and the other person (respondent) both accept the award then the Injuries Board will make an Order to Pay. If one party does not accept the award in question for whatever reason, the matter has not been agreed to and the Injuries Board and won’t grant an Order to Pay.
If the matter is not dealt with by the Injuries Board, then court proceedings may be an appropriate option for the resolution of the matter.
Frequently Asked Questions
How do Personal Injury* Claims work ?
An initial step for any injured party who wishes to initiate a personal injury* claim is to make an application to the Board. The Personal Injuries Assessment Board is a statutory body that carries out its own private, independent assessment of a persons personal injury* claim. It will not assess claims regarding the provision of any medical or surgical procedure in relation to a person, or the provision of any medical advice or treatment to a person.
A purely paper-based system, it never carries out oral hearings but assesses claims with regard to medical evidence, such as the medical report furnished by the injured party to the Board.
If the person who caused the injury consents to the Injuries Board assessing the application, or if they fail to state in writing whether they consent to the assessment or not, the Injuries Board will proceed to carry out the assessment.
If the person who causes the accident states in writing that they do not consent to the Injuries Board making an assessment, the Injuries Board will issue whats termed an authorisation, which permits the applicant (injured party) to bring legal proceedings.
How many Personal Injury* Claims 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 often do Personal Injury* Claims go to Court
This is answered above.
Is there a time limit to making a Personal Injury* Claim ?
There is a limit regarding how long an injured person has to initiate a legal action. This limit is pursuant to the statute of limitations act and if surpassed, it can cause your claim to be whats termed as statute barred from court. One has two years from the date of the accident to initiate the legal action.
When should you make a Personal Injury* Claim in Ireland ?
In our opinion one should do so if they are injured and sustained loss due to anothers negligence, negligence is denied and the party refuses restitution for monetary loss.
What is a Personal Injury* Claim ?
If you have been injured as a result of the actions of someone else, you will have suffered what is termed a Tort, which is a civil wrong, and as an injured party you will have a right to initiate a personal injury* claim. In the law of negligence, what is termed 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’’.
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 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 happens in a Personal Injury* Claim ?
In the above paragraphs we explained how to make such a claim to the Injuries Board.
Once your Application has been lodged with the Injuries Board, the Board will serve Notification on the Respondent party ie the party allegedly responsible of the claim.
The party possibly responsible can communicate with the Injuries Board whether they agree or not the Injuries Board making an assessment. If the said party agrees to this, the Injuries Board will proceed to make an assessment.
The applicant will have to attend for a medical assessment with a relevant doctor arranged by the Injuries Board who will also complete a medical assessment review and report.
The applicant will have to submit all financial loss documentation and detail the Injuries Board who will conclude their assessment approximately nine months after they notify the Respondent of the claim.
The Injuries Board will then conclude their assessment of damages which is based on the Book of Quantum, and it is then for the applicant and respondent to consider if they agree or not the assessment made by the Injuries Board.
How are personal injury* claims calculated
Personal Injury* Claims are assessed by the Injuries Board with the guidance of the Book of Quantum and the Board will also consider the applicants out of pocket expense losses such as medical bills and earnings losses.
What is the role of insurance in personal injury* claims ?
In terms of motor accidents, since 1961 there has been an obligation on vehicle drivers to have motor insurance in place while using a vehicle in a public place.
If then one is injured due to the negligence of another, the injured party can rest easier that at least there is insurance in place to cover the loss.
How long does a Personal Injury* Claim take ?
There is no one singular answer that can be given which works for everybody.
It depends on the individual case for many reasons, but we will give a general guide here.
Personal Injury* claims must be submitted to the Personal Injuries Assessment Board for assessment. On average, claims made to PIAB are assessed within 9 months from the date the Board notifies the party who the claim is taken against.
If the case is dealt with and concluded at this point to the satisfaction of the parties, the entire timeframe could be 9 months to one year. If the matter is not dealt with by the Injuries Board, the injured party may have the option of proceeding to court to seek a Judgement from the court.
Some factors that may affect how long a case takes include:
- Once an application has been made to the Personal Injuries Assessment Board, it usually takes between 9 months to 1 year before it is concluded.
- If one of the parties does not agree to the Injuries Board making an assessment, the matter can proceed to court.
- If an assessment sum is not agreed to by one party, the matter can proceed to court.
- How long will the court case process take depends on various factors, such as, is the case straightforward for complex ?.
- Is there one injury or multiple injuries ?.
- What is the attitude of the defendant to the case ?.
- Has liability been admitted or is it contested ?.
- Has the injury stabilised ?.
- Has the treatment concluded ?. Has the injured parties doctors recommended further treatment ?. Detail of the further treatment is then required.
- What number of experts reports are required ?.
- Is it easy or difficult to obtain expert reports ?.
- Is it easy or difficult to obtain medical records ?.
- Have the legal pleadings concluded. In the High Court the defence must be provided to the injured parties solicitor within 8 weeks from the time the summons is served. This is not a long time, and in personal injury* cases one must proceed step by step in conjunction with the guidance of the doctor(s) assisting the injured party. Medical care can take time, recovery can take time, and guidance from the doctor and the patients thoughts on their own rehabilitation are important considerations in terms of assessing controlling the speed of a case.
Can I make a personal injury* claim for emotional distress ?
There are conditions which must be met before one can embark a personal injuries* legal action where the employee sustains emotional distress.
For example, if the distress is due to a work situation, one should apply the facts to the following questions.
- Is the employees injury either physical in nature or a recognisable psychiatric illness diagnosed by a Psychiatrist ?;
- Was the personal injury* caused by the bullying in the workplace ? for example;
- Did the bullying occur in the workplace ?;
- Was the conduct of the employer unreasonable and without proper cause, which is judged objectively ?;
- Can the injured employee prove that the bullying behaviour caused the injury and was this reasonably foreseeable ?.
The foreseeability test is very important in these actions and the question of what the employer did know, or ought to have known will he investigated thoroughly.
Do I need a solicitor to bring a personal injury* claim ?
No you don’t. You can do it yourself. It is simply a decision you have to make based on if you perceive there is value in obtaining a solicitor or not. If you perceive there is no value in it, like in any service, you won’t want to obtain such a service.
You can obviously ask a solicitor what specifically does their service involve and ascertain their experience for such cases, which may assist you making the decision.
Is there an impartial service or helpline for general advice ?
Not that we know of other than from solicitors who understand tort law.
What is mean’t by personal injury in tort ?
If you have been injured as a result of the actions of someone else, you will have suffered what is termed a Tort, which is a civil wrong, which basically means you will have a right to seek a legal remedy for this wrong. Tort law is there to protect people from harm and injury and attach legal responsibility to anyone who causes the harm.
Kieran Cleary and Roger Cleary can help with any questions you have regarding negligence, liability and what can be done in offices in Clonmel, Co. Tipperary or Dublin 7. If instructed we will act in your best interests to secure whats agreed.
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”