Tipp FM Legal Slot – 15th October 2013
John M. Lynch on Personal Injury Claims – Injuries Board
Is it necessary or advisable for anyone who suffers a personal injury to contact their solicitor or can they deal with the Injuries Board directly?
Solicitors act for the injured person, not the insurance company, and we represent the interests of the injured person alone.
The Injuries Board is an independent body and does not represent someone who is involved in an accident – be it a road traffic accident, a workplace accident or slips and falls or any other kind of injury.
If someone suffers an accident or injury through no fault of their own they have a right to a solicitor and to compensation.
The Injuries Board will try to keep claims low – both in numbers and cost so anyone who suffers an injury should contact their solicitor who will put the best case possible forward for them and ensure they are entitled to an amount of compensation that fully reflects the injury suffered.
Has the Injuries Board previously claimed that legal representation is not necessary?
The Injuries Board are suggesting that people do not need to seek legal advice; that they do not need an expert to determine the value of their claim; that they do not need a solicitor in case the Injuries Board cannot or refuse to assess the claim – or if they do assess it if the amount is not reasonable. This is not the case.
The Injuries Board was set up in 2004 by the Government as an independent body to assess claims for compensation for anyone who has been in an accident and suffered an injury.
One of the hallmarks of the system should be that the Injuries Board is independent and should do its job without taking sides as the two sides have differing interests – the claimant to maximise the claim and the insurer to minimise the claim.
Speaking about the Injuries Board Annual Review 2012, Patricia Byron, CEO of the Injuries Board, said: “By law, personal injury claims (with some minor exclusions set out in Statute) must come to the Injuries Board for assessment regardless of whether the claimant has legal representation or not. Direct claimants can have their claims assessed for a refundable fee of €45. In assessing claims the Board makes no distinction between a direct applicant and a claimant who pays an intermediary the equivalent of up to 10%, or even more of the value of the award. In 2012 the average assessment period was 7 months, compared with 3 years through litigation. “
In March the Irish Independent reported an increase in claims of 5% since last year and an increase of 25% since 2007. The Injuries Board revealed almost 29,000 people made a claim last year: Patricia Byron, CEO of the Injuries Board referred to the increase in compensation claims as a “claims culture”.
In reality, in the vast majority of cases it is simply a case of injured persons being awarded what they are entitled to.
The Injuries Board prides itself on the fact that in the majority of cases it deals with it is not necessary to instruct a solicitor to pursue a personal injury claim and claimants can deal directly with the Board.
The one sided approach shown by the Injuries Board and comments about a “claims culture” makes it all the more important for people to have independent advice which is outside of the Injuries Board.
We would strongly recommend that any person proposing to make any application to the Injuries Board firstly seek legal advice.
Generally, how long would a person be waiting for the Injuries Board to resolve a claim?
The Board state that they have significantly reduced the amount of time it takes to resolve a claim from three years to seven or nine months, in most cases.
Would an injured person’s symptoms have fully developed within nine months and what happens if the claim is already settled and new symptoms arise?
In the majority of cases it can take – at a very minimum – twelve months for symptoms to fully settle down and in a lot of cases the symptoms may take substantially longer to settle down or worse have permanent effects.
It is a serious risk to accept compensation for injuries which are not fully recovered as no one knows how long the recovery process will take or if there may be lasting damage.
If you accept an assessment of compensation in the months after your accident without the proper advice you risk being hugely under compensated should your symptoms continue or even deteriorate afterwards.
Once an assessment is made by the Injuries Board and is accepted by a claimant it is in full and final settlement for that injury and there is no turning back.
The assessment process with the Injuries Board is rigid. When a personal injuries claim is taken before the Courts you submit your claim at the outset and can then update details and particulars of the injuries and wrongs prior to the hearing of the case. The Injuries Board does not allow this.
Once your application is submitted that is that and you cannot update or change your claim at a later stage. This is particularly risky where a claim is submitted before your injuries have settled down as the situation can change very quickly leaving the Board assessing what is not really the full extent of your injuries.
Can the Injuries Board assess every personal injury claim or are there circumstances where the injury is outside their remit?
The Act essentially states that PIAB is not required to make assessment if in their opinion:
- There does not exist, a sufficient body of case law or, as the case may be, a sufficient number of settlements to which regard may be had by the assessors for the purpose of making such an assessment,
- It is complex and there is an interaction of one or more injuries which makes the decision complex. These include issues involving the interaction between each of a number of injuries sustained in the accident or the interaction between one or more such injuries and any existing condition or disease suffered from or any injury he or she previously sustained.
- Where the injuries consist wholly or in part of psychological damage.
- Where aggravated or exemplarily damages are bona fide sought to be recovered.
- Where the claim arises out of the trespass of the person.
- Where there is a possibility that the claimant may die before the claim could be properly assessed and therefore proceedings may be more appropriate to be issued.
- They may also provide an authorisation where it is clear that they will not be able to reach a prognosis within the fifteen month period.
Complexities can arise, even in what may seem the most straight forward injury claim, so we would always recommend that you would seek legal advice before making any application to the Injuries Board.