Why Instruct a Solicitor

business-lady-othres-in-backgroundThe InjuriesBoard.ie (formerly known as the Personal Injuries Assessment Board(PIAB)) aims to have Injuries Claims processed quickly. Where however the InjuriesBoard.ie fails the public is in its complete rejection of the necessity for members of the public to ensure that they have the benefit of legal advice. When PIAB was initially launched in 2004 PIAB wanted the submission and resolution of Personal Injury Claims to be a “solicitor free” zone. Members of the public were informed that they did not require a solicitor to submit a PIAB Claim. Now, over 90% of Claimants submit their Claims through their solicitor. Experience has obviously shown that this is necessary. We explain some of the reasons why.

About the InjuriesBoard.ie

The InjuriesBoard.ie is a State agency and was set up after the Personal Injuries Assessment Board Act 2003 was passed. PIAB was formally established by Ministerial Order on 13th April 2004.

Who Does it Deal With?

It deals with specific enquiries from the person who has had an injury (the Claimant) and the person who is being held responsible for causing the injury (the Respondent). It also deals with general enquiries around the types of claims it handles from any other person calling on behalf of Claimants or Respondents.

What Does it Do?

It assesses how much compensation may be given to someone (the Claimant) who has had an injury when the person they are looking for payment from (the Respondent) does not dispute the legal issues including liability. It claims to deliver compensation without the legal costs and experts fees. It claims to reduce the amount of time it takes to finalise a compensation claim.

New Rules on Accidents

From the 22nd July 2004 all claims for personal injury (excluding medical negligence) must be submitted to the InjuriesBoard.ie before starting legal proceedings no matter what date the accident occurred. This applies even where it is correctly anticipated that the Respondent will dispute liability.

Who Works in the InjuriesBoard.ie?

They are public servants who are funded by fees which are charged to Respondents (the people who pay compensation). (See Disadvantages section).

PIAB claims it has staff who have the appropriate legal, insurance and medical expertise to assess compensation.

No Oral Hearings

It works using documents only. There are no oral hearings, so Claimants do not have direct access to the assessment team. (See Disadvantages section).

How do You Make a Claim?

Morgan McManus Solicitors will attend to this for you.

The InjuriesBoard.ie states that you should make a claim directly to the party that injured you and if you fail to reach a settlement you must decide if you want to take further action.  Morgan McManus will complete the InjuriesBoard.ie Application Form and submit this form together with your Medical report and €50.00 application fee to the InjuriesBoard.ie.  The InjuriesBoard.ie decides how much you are due but states that it is the Respondent’s responsibility to pass the compensation on to you, thus stating that an award from the InjuriesBoard.ie has the same status as a Court award once an “Order to Pay” has been made.

Your Application must include the following:

  • a completed Application form (Form A)
  • a medical assessment form from your treating practitioner;
  • receipts and vouchers for any other financial loss you may have incurred, together with any other documentation you may consider relevant to your claim;
  • If you have entered into any correspondence with the Respondent following your injury, copies of this correspondence should also be included.
  • payment to the InjuriesBoard.ie of €50
What Happens Then?

Contacting the Other Party (the Respondent)

When your Application is complete, the InjuriesBoard.ie will write to the person you hold responsible for your injury, the Respondent, to let them know you are making a formal claim for compensation. The InjuriesBoard.ie will send the Respondent a copy of your Application so that they are aware of the extent of your claim. The Respondent has 90 days to let the InjuriesBoard.ie know if they are happy for them to assess your claim.  (See Disadvantages section). If they don’t contact the InjuriesBoard.ie within 90 days the case will automatically go ahead for assessment.

If the Respondent believes they are not responsible for your injury they may turn down the opportunity for The InjuriesBoard.ie to handle your case.  (See Disadvantages section). If this happens the InjuriesBoard.ie will issue an‘ Authorisation’ to allow you bring your claim to the Courts if you so wish. If the Respondent unreasonably refuses to allow a case to proceed to assessment they may face additional costs if pursued through the Courts.
Assessing your Case
Your claim is assessed by the InjuriesBoard.ie Assessment Team.  If the Respondent allows the InjuriesBoard.ie to assess your claim, that does not mean that a Respondent has accepted legal liability.   (See Disadvantages section ).  At all times, it is open to the parties involved to agree settlement of the claim and you should advise the InjuriesBoard.ie if this occurs.
Making the Assessment
Once the InjuriesBoard.ie has all the information it needs, its assessment team will normally make the assessment based on the medical assessment form from your treating practitioner.  (See Disadvantages section ).  However, if the Respondent challenges any part of the medical assessment form and the InjuriesBoard’s assessment team considers that the challenge may have merit, you may be asked to go for a medical examination to a member of an independent Medical Panel.

The InjuriesBoard.ie states that once it has all the information it needs, its assessment team will assess your claim and make an assessment. The InjuriesBoard.ie will write to you telling you how much the assessment is. You must write back to the InjuriesBoard.ie within 28 days to accept this assessment.
What Happens if You Don’t Accept the InjuriesBoard’s Assessment?
If you don’t write back to the InjuriesBoard.ie accepting the assessment, the InjuriesBoard.ie will assume that you have rejected it. In this case the InjuriesBoard.ie will give you an Authorisation to continue your case through the Courts, if you so wish. If this stage is reached, the InjuriesBoard.ie will return all original claim documents to you and they will have no more contact with you.
Independent Medical Examination
When you submit a claim to the InjuriesBoard.ie, you need to enclose a copy of your treating practitioner’s medical assessment form in relation to the injury sustained.

A copy of this medical assessment form is sent to the Respondent (the person you hold responsible for your injury) once they have consented to assessment of the claim, and they may decide to challenge some aspect of the medical evidence.  (See Disadvantages section).  If the InjuriesBoard.ie assessment team considers that there may be merit in that challenge, you may be asked to attend for a medical examination with a member of an Independent Medical Panel.  (See Disadvantages section).
Disadvantages of the PIAB Process
What the InjuriesBoard.ie does not tell you and why you therefore should instruct a Solicitor when submitting a Claim to the InjuriesBoard.ie.

  1. The InjuriesBoard.ie delivers your Medical Report to the Respondent in circumstances where the information in the Report may be extremely sensitive
  2. The InjuriesBoard.ie will assess your Claim on one Medical Report only from your doctor
  3. The InjuriesBoard.ie will not advise you at the appropriate time of your obligations despite complex legislation
  4. The Respondent gets an opportunity to see the good and bad points in your case
  5. No oral hearing – What if your doctor’s report has omitted some essential information?
  6. Avoiding delays
  7. Respondent’s rejection of assessment – Avoiding further delays
  8. Highlighting to the Respondent the cost of delays
  9. Solicitors issuing Judicial Review Proceedings to protect the interests of the Claimant
  10. Protecting the Claimant from the penal consequences of the Personal Injuries Assessment Board (Amendment) Act 2007
  11. The InjuriesBoard.ie will not advise you on the correct Respondents against whom you should make your Claim
  12. Ensuring that the InjuriesBoard.ie “Order to Pay” is a guarantee of payment
  13. Ensuring that you submit a correct Claim

1.  The InjuriesBoard.ie delivers your Medical Report to the Respondent in circumstances where the information in the Report may be extremely sensitive

The InjuriesBoard.ie delivers your Medical Report to the Respondent.  This can be  an extreme breach of confidentiality where, very often, sensitive medical information is delivered, for instance, to the third party driver who collided with you. This is, more than likely, in breach of its obligations under the Data Protection Acts. The InjuriesBoard.ie has now published the manner in which it deals with sensitive information of this nature. However the InjuriesBoard.ie has released such sensitive information in the past to third parties despite being requested not to do so. A solicitor with knowledge of obligations under the Data Protection Acts can check the Medical Report on receipt from your doctor before delivery to the InjuriesBoard.ie toensure that it does not contain sensitive information which will be released to the Respondent and the Solicitor will also warn the InjuriesBoard.ie of the obligations of the InjuriesBoard.ie under the Acts to ensure that it does not release sensitive information to the Respondent.

2.  The InjuriesBoard.ie will assess your Claim on one Medical Report only from your doctor

As the InjuriesBoard.ie will assess your Claim on one Medical Report only from your doctor it is more than likely that it will not have an accurate understanding of your injuries.  The restriction on the Claimant only being allowed submit one Medical Report does not allow for the fact that you may have been treated by one or more doctor; e.g, a Consultant Surgeon in a hospital, a psychiatrist, a Dental Surgeon, a Pain Specialist etc. Nor does it allow for the fact that, in that first Medical Report which is generally submitted shortly after your accident, your doctor may not be able to give an accurate prognosis at that early stage on the prognosis for your injuries. What if your injuries turn out to be more serious than originally anticipated by your doctor?

3.  The InjuriesBoard.ie will not advise you at the appropriate time of your obligations despite complex legislation

The InjuriesBoard.ie will not advise you at the appropriate time of your obligations under the Civil Liability and Courts Act 2004 or the MIBI Agreement (See article by Brian Morgan: Personal Injury Accident Claims 2011 You still need a Solicitor). Because of the complexities which arise today by reason of new legislation it is imperative that every Claimant takes legal advice before submitting a Claim to the InjuriesBoard.ie.

4.  The Respondent gets an opportunity to see the good and bad points in your case

The Respondent gets an opportunity to see the good and bad points in your case. If he doesn’t like the Award made by the InjuriesBoard.ie, he can then change his mind and deny liability for the accident when the case goes to Court.  The Claimant however does not get the same opportunity to inspect the good and bad points of the Respondent`s case during the InjuriesBoard.ie process. By instructing a Solicitor you get the benefit of legal advice to ensure that only the minimum required information is furnished with your InjuriesBoard.ie Application and you are not subsequently prejudiced should it be necessary for your Claim to go to Court Hearing. Remember, most Claims are not resolved by the InjuriesBoard.ie. Therefore, it is always wise to assume that your Claim could be the one to proceed to Court and therefore you should ensure from the start to take the benefit of legal advice.

5.  No oral hearing – What if your doctor’s report has omitted some essential information?

If your Medical Report was prepared by your doctor and he omitted to detail some of your injuries how can you ensure that these injuries will be brought to the attention of the InjuriesBoard.ie Assessment team if there is no oral hearing?

6.  Avoiding delays

Why should the Respondent have 90 days from notification by the InjuriesBoard.ie  to let the InjuriesBoard.ie know if it is happy for the InjuriesBoard.ie to assess the claim?  Where the Respondent subsequently writes stating that it does not want the InjuriesBoard.ie to assess the claim, this will result in at least a three month delay in the resolution of the Claimant’s case. Your solicitor can write to the Respondent / his Insurance Company demanding that a decision is made without delay on whether the Claim is to proceed through the InjuriesBoard.ie. In some instances during this stage of the process the Insurance Company is happy to undertake “Without Prejudice” settlement discussions with the Claimant`s Solicitors with a view to early settlement where it may not be able to have such discussions with a Claimant who was not legally represented.

7.  Respondent`s rejection of assessment – Avoiding further delays

Where the Respondent allows the InjuriesBoard.ie to assess the case but subsequently rejects the InjuriesBoard`s assessment this will result in at least one years delay in the resolution of the Claimant’s case. Again, the involvement of a solicitor acting for the Claimant can often force the Respondent to come to decision more quickly as to whether he will defend the Claim / deny liability and thus avoid the necessity for the Claim to proceed through the InjuriesBoard.ie.

8.  Highlighting to the Respondent the cost of delays

We are told that if the Respondent unreasonably refuses to allow a case to proceed to assessment they may face additional costs if pursued through the Courts.  There is no provision for compensating the Claimant`s where he suffers loss by reason of the Respondent delay.  For instance, the InjuriesBoard.ie  has made no provision for the fact that a Claimant, in a case where the Respondent rejects the assessment made by the InjuriesBoard.ie, will be delayed by at least a further year in getting his case to Court Hearing.  This could be a very long period of time for a Claimant who has been rendered unable to work by reason of severe injuries sustained. Again, the involvement of a solicitor acting for the Claimant at this stage can bring home to the Respondent just how serious the Claimant`s injuries are and how delays by the Respondent in these circumstances are only serving to aggravate the Claimant`s injuries and consequently increase the compensation payable to the Claimant in the long term.

9.  Solicitors issuing Judicial Review Proceedings to protect the interests of the Claimant

Initially, Claimants were only allowed to claim the cost of one medical report at a restricted cost of €150 payable to the doctor, despite the fact the Claimant may have been obliged to pay anything up to €350 to the doctor to secure that report. This was despite the fact that the InjuriesBoard.ie was paying its own independent medical more than €150 for their medical reports. As of 25 June 2007 the InjuriesBoard.ie has announced a change in their policy of payment of fees for medical reports.  This followed a Judicial Review brought by a Claimant in which the inflexible policy of awarding €150.00 for medical reports was challenged.  The Board is now obliged to consider the fee for each report on its merits. This discrepancy was quite clearly unjust. It was necessary for a Claimant, represented by a Solicitor and Counsel, under risk of High Court costs, to issue Judicial Review proceedings to get the High Court’s direction on the unfairness of this discrepancy. Solicitors, not the InjuriesBoard.ie, will continue to fight forthe rights of their clients where they perceive that an injustice is occurring.

10. Protecting the Claimant from the penal consequences of the Personal Injuries Assessment Board (Amendment) Act 2007

The InjuriesBoard.ie process was very much heralded as a system where the Claimant, at no risk or cost to the Claimant, got the opportunity to settle his Claim quickly. He was advised that if he refused the Award made by the InjuriesBoard.ie he could issue Court Proceedings and would not be penalized for the fact that he had rejected the InjuriesBoard.ie Award. Prior to the Personal Injuries Assessment Board (Amendment) Act 2007, if you were successful in your legal action through the Court system the amount of compensation which you may have been awarded by the Court  may have been less or more than the amount of the InjuriesBoard.ie Assessment amount.  Previously, if the person(s) you were claiming against rejected the InjuriesBoard.ie Assessment, and if you were successful in your legal action through the Court system in the ordinary way, you would have been entitled to seek to recover your Legal Costs of those Court proceedings without automatically facing the restrictions appearing in the next Paragraph.

On 11th July 2007, the Personal Injuries Assessment Board (Amendment) Act was signed into law. This followed a heated debate in the Dail on 5th July 2007 when the Bill passed all stages in one day without amendment and was, bizarrely, effectively treated as emergency legislation. The Law Society obtained an opinion from Senior Counsel, a recognized expert in constitutional law, who opined that Section 51B of the new Act may well be unconstitutional. This opinion was passed to Micheal Martin, Minister for Enterprise, Trade and Employment at the time, who was responsible for the introduction of the Act and also to Attorney General at the time, Paul Gallagher S.C.  A further letter was sent to the Minister outlining the potential injustices to Claimants. Opposition deputies demanded to know why the Government were rushing through such legislation in the light of these concerns. The Government, however, insisted that its own legal advice from the current Attorney General and his predecessor, Rory Brady, was that it was constitutionally sound.  Minister Martin also insisted that the Act was a pro-consumer piece of legislation and was only designed to close a loophole.

This change in the Law since 11th July 2007 enacted under Section 51B of the new Act means that if the PIAB Assessment amount is rejected by you the Claimant, but is accepted by the person(s) against whom you are claiming, then even if you are successful in your subsequent legal action through the Court system in the ordinary way, but either:-

(a)   the amount of compensation for your injuries, losses and expenses which you may be awarded by the Court or,

(b)   the amount which you may decide to accept in settlement if a suitable Out of Court Offer in Settlement is made to you in that subsequent legal action through the Court system,

actually turns out to be less than the amount of  the InjuriesBoard.ie Assessment, then in most circumstances:-

(1).  No award of Legal Costs of those Court proceedings may be made to you, and

(2). The Court has a discretion to award against you all or some of the Costs of those Court proceedings which were incurred by the person(s) you are claiming against who had accepted the the InjuriesBoard.ie Assessment.

Please note that these changes in the Law are designed by the Oireachtas (the Irish Parliament) to get Claimants to settle up their claims as quickly as possible and as cheaply as possible for the person(s) against whom they are claiming. This design is not in the best interests of the Claimant, which it is the duty of the Claimant’s Solicitor to protect. As part of our commitment, to you we will consider and review each tactical step as it occurs in the InjuriesBoard.ie process and / or in any subsequent Court Proceedings and advise you as to your best options for obtaining full and proper compensation for the injuries and losses which you have suffered as a result of your accident, and to recoup the out-of-pocket, Legal and Medical expenses which the Law requires you to incur at the outset to be able to bring a claim to recover such compensation.

We share the considered opinion of the Litigation Committee of the Law Society that any InjuriesBoard.ie Assessment or later Offer from the person(s) against whom you are claiming which is inadequate will be clearly advised by us to you as being such. The experience of the Courts to date since the the InjuriesBoard.ie system came into effect in mid-2004 has shown that the majority of rejected InjuriesBoard.ie Assessments are comfortably exceeded in subsequent Court proceedings. But how could a Claimant make a considered evaluation of the risks if he did not consult a solicitor?

11. The InjuriesBoard.ie will not advise you on the correct Respondents against whom you should make your Claim

The InjuriesBoard.ie will not advise you on the correct Respondents against whom you should make your Claim. That is, what if you should have claimed against the Respondent’slimited liability company but incorrectly issued proceedings against the Respondent personally? The Authorization would issue from the InjuriesBoard.ie in due course in the name of the incorrect Respondent. You can only sue the Respondent named in the InjuriesBoard.ie Authorization. What if you only found out after the limitation period that applies in your particular case. This is a good reason for seeing a solicitor as soon as you think you may have a claim for compensation.</p> ">limitation period. that you had claimed through the InjuriesBoard.ie against the incorrect Respondent? The consequences of issuing Proceedings after the expiry of the limitation period means that your Claim will be statute-barred. That is, it will be too late to make a Claim. By instructing a Solicitor immediately that Solicitor will ensure that you sue the correct Respondent.

12. Ensuring that the InjuriesBoard.ie “Order to Pay” is a guarantee of payment

By issuing an “Order to Pay” to the Respondent, the InjuriesBoard.ie is not guaranteeing that the Respondent will make that payment. Nor is the InjuriesBoard.ie confirming that the Respondent has the necessary Insurance Cover to assist him in making that payment. A prudent Solicitor would not allow you to settle a Claim without ensuring that the Respondent had the ability to pay the Award.

13.  Ensuring that you submit a correct Claim

Under the PIAB Act a Claimant may withdraw an application made by him or her at any time before an Assessment is made in respect of the relevant claim concerned and, where a Claimant does so, the Act recites that “the Board shall cause no step or no further step under this Part in relation to the claim to be taken”. However the Act also recites that if such an application is so withdrawn the Claimant may not, in relation to the relevant claim concerned, either make a fresh Application or bring proceedings. A Claimant should therefore not be under the illusion that he can submit a claim without the necessity of legal advice and only consider getting legal advice if the InjuriesBoard.ie Claim subsequently turns out to be difficult. He will not be able to withdraw his badly drafted Claim and get his newly instructed Solicitor to submit a fresh Claim. It is extremely important therefore that a Solicitor is instructed in the first instance to submit your InjuriesBoard.ie Application.

A prudent Claimant will ensure to instruct a Solicitor at the start of the InjuriesBoard.ie process.