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.

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.

This is answered above.

In our opinion one should do so if they are injured and sustained loss due to anothers negligence, who denies negligence arose and refuses restitution of monetary loss.

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.

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.

One heading of damages in a personal injury claim* is called Special Damages.

Special Damages are financial losses that occurred to the injured party in the accident arising from negligence.

This could be vehicle damage in a road traffic accident, for example. It could be loss of earnings due to inability to work.

If an injured person who commences a personal injury* claim has medical expense loss, then this should be included in the persons claim.

Medical care for different injuries takes time, so the costs lost to the person for medical expenses should be reviewed over time.

If a person fractured a vertebra, for example, and if the matter did not resolve itself, they may be referred by their doctor to a pain management specialist, for example, to obtain treatment and pain relief.

This person may have facet joint pain syndrome or nerve root impingement syndrome and require joint injections, for example.

The injured person may then have procedure fees and consultation fees arising from the treatment care, and these losses can be included in the person’s special damages, as they are consequential losses arising from the accident in question.

In a case, there may be a need to calculate medical losses to date, but there may also be a requirement for future medical care costs to be assessed.

This will evidently depend on the seriousness of the injury/its duration etc.

It is not the person’s fault they are in the situation they are in, and if they have future care needs, then this should be included in a future care costs assessment.

Again, depending on the injury, but if the person requires future daily assistance/therapies/treatments / future programmes/counselling etc. then this should be included in the special damages.

If a person has future care financial needs, then retrospective care costs plus future care costs should be included in the person’s special damages.

Sometimes the Plaintiff ie injured party in a personal injury* claim if they are successful in their case, a court can apportion liability between the injured party and the defendant, and this person is momentarily confused if they won or indeed lost their case.

Here’s an example.

Luke (not a real named client) was injured in a work accident. He takes a case against his employer for damages citing negligence and breach of statutory duty for a wedge fracture of a thoracic disc sustained. The employee contends the system of work created by the employer was unsafe and this accident was a foreseeable consequence of the employer’s breach of the Safety, Health & Welfare at Work Act 2005.

An employer under the legislation is obligated to ensure employees are safe at work, as is reasonably practicable, manage work activities in a safe manner and have systems of work that are planned, organised, maintained etc. which are safe and so without risk to the employee.

The employee also contends the employer was in breach of Section 19 of the Safety, Health & Welfare at Work Act 2005 as they did not carry out a risk assessment to assess the risk related to the accident that occurred, and then act accordingly by taking the steps to deal with the risks.

The employer on the other hand denies negligence.

The employer contends the employee is responsible for the accident and contends the injured party was in breach of Section 13 of the Safety, Health & Welfare at Work Act 2005 which requires employees to take care to protect their own safety at work, not engage in conduct that would endanger his/her own safety etc. The employer contends the employee was 100% contributory negligent for their own injury and hence should not recover from the defendant employer.

The system of work in place at the time of the accident will need to be assessed by the court and possibly engineers’ evidence given.

If the court makes a decision in favour of the employee, but not 100%, it can apportion liability.

For example, the court concludes the employer breached a duty of care and/or statutory duty to the employee, but also that the employee contributed to the negligence. Therefore the court could conclude, for example, that it holds the employer liable for 75% and the employee-injured party 25%, therefore the person’s award of damages will be reduced by this 25%.

If a party is injured in an accident caused by the negligence of another, and they are out of employment for a short or long period of time, they will have a concern about lost income during the period of absence from work.

The Organisation of Working Time Act 1997 does provide rights to employees regarding annual leave and public holiday pay, but if an employee is out of work due to an injury that does not resolve itself quickly which is commonplace, then the question arises regarding what income protection they have during the period of work absence.

If one is an employee, then they should review their employment contract to ascertain what is the sick pay policy in the contract, if any. There may not be one.

If there is no such payment provision in your contract, then is there a sick pay policy in your workplace perhaps ?.

An employee can then consider if they have an income protection policy in place or if there is a health insurance policy in place under which they are covered.

If none of the above arises, then they should include in any personal injury* claim initiated, a claim for the loss of earnings arising from the negligence.

What is the period of absence and what is income loss will have to be assessed?

Payslips can assist with the computation and any relevant revenue documents.

If an injury recovery time is not finite, which many aren’t, and there is an inability to work into the future, or if a person cannot do the same job they did before due to the injury, possibly have to retrain which results in income reduction, then a loss of earnings claim into the future should be considered, and an actuary engaged to conduct this assessment.

It will need to be assessed what was the persons income pre-accident, what is the injury, what is specified in the medical reports, what is their current physical and mental capacity, and can they return to the same capacity they previously occupied in terms of their work.

If, for example, it is unlikely the injured person will have the capacity to fulfil the same previous employment role, which they will have discussed with their doctor, and this person needs to retrain, then it will likely be necessary for the person to have an assessment conducted by a vocational assessor for their case. When an accident happens in a persons life that carries long-term consequences, their life can be turned upside down, and time is needed to take stock and then choose a course of action that is the best way forward for them. A vocational assessor can, once the injured person symptoms have stabilised, the doctor(s) are clear regarding the prognosis, carry out an assessment in the form of a report, which can assist a court with an understanding of likely employment options available to the person, and employment options the injured person considers they will engage in.

A number of changes were brought about by the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 in response to pandemic challenges, but one of the changes relates to a document titled the Statement of Truth which is now relevant for persons in personal injury claim* legal actions.

In August 2020 since the introduction of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 we now have what is termed Statements of Truth in personal injury claims* legal cases.

Section 21 of the Act deals with Statements of Truth which can be seen here.

This statement of truth is one of the legal reform responses to the pandemic.

Up until this point we have had in personal injury claim* civil law cases the requirement of Verifying Affidavits in each personal injury* action. This required witnesses in civil law cases to swear a religious oath in an affidavit.

One of the many problems that arose in the pandemic was the difficulty of affidavits being sworn on oath, as this process requires a meeting in person with a solicitor/commissioner for oaths etc., with all the problems of humans being in the same room together and the pandemic infection risk.  

Law reform decision-makers decided upon Statements of Truth in civil law personal injury claim* cases which means that statements of truth can be transmitted to courts offices by electronic means which can replace verifying affidavits or statutory declarations.

The effect of the signed statement of truth is the person making it confirms the facts included in the document are true ie that the person has an honest belief the facts are true.

The statement of truth must be signed by the person making it, which can be effected in electronic format.

If a person makes a statement of truth they know to be false, they may be guilty of an offence and liable to summary or indictable conviction, or proceedings for contempt of court.

Crime of omission, is not normally what an injured person thinks is applicable to them ( the injured party ) when they are going about their business and an accident happens due to the fault of another’s negligence and they decide to pursue a personal injury claim*. However, this is what was argued recently towards a personal injury claimant who the court concluded gave false information in relation to their personal injury claim*.

If a person who brings a personal injury claim is found by the court to give false, dishonest, misleading information relating to their claim they can receive a sentence of ten years and or a fine of €100,000.

The law in Ireland on this is outlined in the Civil Liability Act 2004.

S. 25 of that Act, state’s, a person gives or dishonestly causes to be given, or adduces or dishonestly causes to be adduced, evidence in a personal injuries action that— is false or misleading in any material respect, and that he/she knows to be false or misleading, he/she will be guilty of an offence.

The person gives or dishonestly causes to be given, instruction or information, in relation to a personal injuries action, to a solicitor, or person acting on behalf of a solicitor, or an expert, that— is false or misleading in any  material respect, and that he/she knows to be false or misleading, he/she will be guilty of an offence

A dishonest act has simply been defined as an act that was intended to mislead the court.

So the law is clear then, if anyone pursuing a personal injury claim* gives false information to the court, to their solicitor, to a doctor, orthopaedic surgeon etc. or an expert involved in or hired by the injured person then that person if the lie is proved in court can be sentenced to jail and or fined. This is a mighty consequence for being found to bring a fraudulent claim. A person could go to jail, incur a fine of €100,000, lose their freedom, lose the personal injury case they had and may have to pay the costs of bringing the case in the first place to the defendant.

S.26 of the Civil Liability Act state’s that the court will dismiss a claim where the person who brought the claim is found to have given false or misleading evidence.

If one was to bring an unmeritorious claim based on deceit and lies; there can be a very heavy price to pay in Ireland to take this route in the form of prison and or a huge fine.

Yes.

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.

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.

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.

Damages in legal cases of this nature are divided into two groups, namely general damages and special damages.

Special damages can be loss of income, medical consultations, treatment fees, damage ie loss of car, car hire, medication, vehicle towing, travel, physiotherapy, damage to property, or other expenses incurred relevant to the accident.

General damages are calculated with respect to consideration of the pain and suffering sustained. The nature and duration of the injuries will be examined together with the effect on ones life.  

Each personal injury* claim is dealt with on an individual basis, however, the Book of Quantum does provide guidelines regarding a potential range for compensation for a particular injury.

It is necessary to first identify the part of the body that has suffered the injury. There are six categories provided for in the book.

Next the severity of the injury will be assessed, from the minor range to the severe and then permanent.

It is necessary to assess then if there is one injury or multiple injuries.

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 to 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 to the assessment made by the Injuries Board.

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’’.

There are conditions which must be met before one can embark on a personal injuries* legal action where one 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 be investigated thoroughly.

Do I need a personal injury 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 their service involves 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.

If an individual commences a civil claim case and they have a fractured fibula, for example, as a result of a road traffic accident, it can occur that in the defence of your case, the defendant contends that the injury is the subject matter of the proceedings stemmed from a pre-existing injury/condition.

Sometimes it can happen a person sustains an injury, such as a fracture and sometimes in their medical history they also sustained a fracture in the same or similar place in the body.

The difference in time between the first and second injury could be ten years, but a defendant may nevertheless contend a previous accident/condition is the cause of the pain.

It is important for the injured person’s solicitor to review the person’s medical records to put the pieces of the medical history jigsaw together. The injured person’s doctor should be the person best placed to deal with this issue if the person has been with them for many years. People generally don’t tend to change their G.P. often, and a G.P. is often well placed to give a knowledgeable opinion on this matter, or it can be the person’s specialist, such as an orthopaedic surgeon in this scenario. The doctor should have all of the persons relevant medical records to conduct their review, but it is important for the person’s case this is answered decisively.

It may be the case that a previous injury was aggravated by the current injury the person has, but if the person was not symptomatic for a reasonable period before the date of the accident, then it should be clear that the pain and suffering arose from the incident that caused the injury which is the subject-matter of the case. Facts are facts, and what are the medical facts if this issue arises, will simply need to be established.

We have been asked what does ‘costs follow the event’ mean and where does it come from.

This post will explain this and how it might apply to one civil case.

There is a general rule in civil proceedings cases that costs follow the event.

This means in effect that the party who is successful in the civil proceedings is entitled then to an award of costs against the unsuccessful party unless a court otherwise directs.

Section 169 of the Legal Services Act 2015 states that a party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties.

If there are a number of Defendants in a case, and the Plaintiff ie person who initiated the case, is successful against one defendant but not against a second defendant, then the Plaintiff will only likely obtain an award of costs against one defendant and the other defendant may be entitled to their own costs against them. In a 2015 case, it was stated by the court that ‘the general rule is that costs follow the event unless the court otherwise orders. The court also stated that ‘The overriding start point on any question of contested costs is that the general principle applies that namely, costs follow the event. All of the other rules, practises and approaches are supplementary to this principle and are designed to further its application or to meet situations where such application is difficult, complex or indeed even impossible’.

The current pandemic poses many challenges in so many aspects of life and getting court cases heard in personal injury claims* civil law cases are one such challenge.

Obviously, court cases require people to give evidence and attend a courtroom, and courthouse, which is problematic with the pandemic, but justice and the court process must go on, and one way to get court cases heard in personal injury claim* civil law cases is remote hearings.

Remote hearings will take place via video conferencing technology, such as the streaming app called PEXIP and although there was the intention of developing the infrastructure for remote court hearings prior to the pandemic, the need became urgent than with covid-19.

Now with the introduction of the recent Civil Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020  certain courts have powers in respect of remote hearings for civil proceedings, which include personal injury claims* cases.

Parties in a personal injury claim* legal action can apply to the court for a direction with respect to the hearing of a case remotely.

A court of its own motion can itself direct that a civil law case proceeds by way of remote hearing.

Courts have the power to direct the means by which remote hearings will take place, the conduct of the remote hearing, and direct the attendance of witnesses etc.

Persons involved in a remote hearing, but not physically present in court, will have all the same obligations and liabilities as if they were present in the courtroom.

If a person who participates in such a remote hearing intentionally obstructions the technology ie video conferencing etc. they can be found guilty of an offence.

If the Judge is not in the courtroom during the hearing, they will be considered present and can exercise the powers conferred on them by the law.

A person could participate in a remote hearing if they are outside the state with the benefit of such technology, which could be a hugely beneficial outcome for many cases and a reduction in costs.

Many people are wondering how their cases are going to get heard and concluded in the pandemic, but court hearings with people present are continuing to a degree, and now remote hearings could well become commonplace with time to get cases on, heard, and concluded.

The Judical Council of Ireland established guidelines with respect to the levels of compensation for General Damages in personal injury claims.

The Personal Injuries Board and a Court will use the guidelines when assessing personal injury claims.