Michael Monahan Solicitor

This depends on each individual case and each Insurance company.

I have never seen the General Damages increased in order to prevent a rejection of an Assessment.

I have seen cases where items of Special Damage were paid after the Assessment was sent to both sides. For example Physiotherapy bills were paid directly by the Insurance company in addition to what was submitted in the claim as the vouchers were not available before the Assessment was made. A phone call to the Insurance company suggesting the Injured party might accept the Assessment if the Insurance paid these “extra” vouchers is usually worthwhile.

No. Sometimes a medical report will not be as favorable or as accurate as the injured party would like. There is no obligation for them to forward their Report . Remember someone will assess the level of compensation payable based on the Medical Reports . They will never meet the injured party so the doctors opinion is all important in estimating the level of compensation. If you go on to court proceedings you are required to disclose all your Reports to the Insurance company.

There have been cases where injured parties knowing at all stages their claim would go to the High Court.They collect a number of medical reports but only forward the most basic one for the Injuries Board. No matter what the assessment of the Injuries Board is they have no intention of accepting it . While the assessment is awaited on the basis of that medical report the injured party has been obtaining more specialised reports. This allows High Court proceedings to be issued and driven forward at a more rapid pace. One of the main delays in dealing with claims is getting appointments with the appropriate specialists. The insurance company cannot get sufficient medical evidence on the injuries in time before the matter is listed for trial. Pressure like this forces insurance companies to settle cases rather than continue them into a full hearing relying on the Injured Parties own medical reports .

Lawyers sell time and expertise and some legal bills can be based solely on time spent on the case. As with all legal work an estimate of likely fees has to be given to the injured party as soon as practicable once the case starts. As the Injuries Board aims to issue a settlement offer within twelve months of lodging of the claim it is possible to quantify the time spent on the case. You also pay for the cost of expert advice which you receive whether the offer is at market rate or not. You should try to get good value in whatever your legal adviser charges you. The basis of legal costs is laid out in the High Court Rules on which time taken on the case is only one factor .

Firms vary depending on their cost structures but between €1250 and €2500 would seem to represent fair level of fees, to which VAT must be added. The Injuries Board makes provision for payment of contribution to costs where children’s cases, fatal injuries and tracing uninsured motorists are concerned.

You don’t – this is the fundamental flaw in the system of the Injuries Board. The injured party is referred to a Book of Quantum which dates from 2004. It only gives general guidelines in relation to injuries. For example neck injuries are valued in four different categories between €14,000 and €45,000 – how do you know which one is for you?

This is where an experienced legal adviser comes into their own. By dealing with claims on a daily basis they can value what the Court would put on your case if it goes to a hearing. They know the cases they have settled already successfully for clients to date and what value they had. On the one side, the insurance companies or the Injuries Board have vast databases to back up the value of the offer they make. On the other hand the injured party has no information apart from guidelines in the Book of Quantum which are too general to be of value. For example, eyes are not covered at all in the Book of Quantum so if you seek valuations on eye injuries the Injuries Board leaves you without any guidance/advice.

At present in early 2011 there seems to be no legal requirement that the injured party goes to any doctor appointed by an Insurance Company for examination. It follows that an injured party in applying for compensation supplies an initial report with the application form. This is forwarded to the insurance company for the Defendant and they have 90 days to see if they would agree to an assessment of this case. An assessment is an agreement that their insured is in the wrong and they will agree to compensate the injured party for their loss. Some insurance companies will arrange for their own medical and put that into the Injuries Board system to give their views on the injury. If the injured party does not go to the medical then the only assessment by the Injuries Board can be made on the injured party’s medicals.

The Injuries Board do not seem to have power themselves to arrange examination of the injured party. They can only assess the case within the time limit laid out based on the medicals which they have. They may in some cases only have those medicals provided by the Injured Party.

Before the Injuries Board was established any defendant/insurance company could make a lodgement or tender in Court. The words mean the same thing that is a sum of money which the Insurance company say is sufficient to pay for the injury and outlays. In later years it became a simple letter written to the injured party or their adviser. This indicated the Defendant would pay a certain amount to meet the claim. This also meant they would pay the injured party’s costs up to date of that letter.

The injured party then had to decide if they could convince a Judge in a hearing they were worth more. The risk is whether to accept the amount that was being offered or to go for a full hearing. The Judge in deciding the level of compensation never knows whether a tender/lodgement exists or not.

With the introduction of the Injuries Board the situation changed. The offer made by the Defendant Insurance company becomes an automatic tender. In plain words, if you choose to go ahead to Court you must be awarded more than the Injuries Board offers or you will have to pay your own costs and the Insurance company Solicitor costs. This is a serious matter and requires you to be properly advised on your best course of action.

The first amendment to the 2004 PIAB Act took away any discretion a judge might have whether costs are awarded against someone who is not awarded more than a Lodgement /Tender. If you lose you pay and that will use up your compensation money . It is designed to “encourage” injured parties to accept lodgements…..to keep down the cost of claims.

The level of the offer made by the Injuries Board would give you an idea what Court
is relevant.

The District Court deals with awards up to €6800
The Circuit Court deals with awards up to €38,000
The High Court deals with awards from €38,001 upwards

If you have ongoing pain and suffering a Court will split your injuries into different sections. These are general damages and special damages (outlays you have incurred as a result of your injury). There is also pain and suffering into the future, cost of treatment into the future all of which will add up and you are better to go to a higher court than a lower court in case the Judge is limited by the level of the Court he sits in.

At the commencement of the system, the main exception to the non-payment of costs was children’s cases. All offers of settlement in children’s cases had to be heard by a Judge in Court. This usually means your Solicitor and Barrister will have their fees paid and the child’s money is lodged in full with the Office of the Accountant of the High Court to be invested on their behalf until the child reaches eighteen years of age. Costs incurred for lodging the claim, to obtaining medical reports and dealing with parent/next friend prior to the ruling should all be listed as an item of special damage and especially any extra expense and ruled on by the presiding Judge. That means the parent/next friend should have no expenses to pay arising out of the claim once it
is successful.

A second category applies if the injured party is ‘vulnerable’. There is no definition of what a vulnerable client is. Clearly, if you cannot read then you need someone to assist you to lodge a claim, but how do you determine who qualifies. Foreign

nationals with little English – do they qualify? There are cases already decided at showing that they may not. The definition in the legislation setting up the Board is that any costs which are ‘reasonable and necessary incurred’ can be considered for payment. Do not expect to have any Legal costs paid by the Injuries Board as the entire basis of its establishment was to save Insurance Companies money by transferring the cost of legal advice and compensation application onto the injured party.

For all road accidents or employer liability claims, they must all start with the Injuries Board process. If psychological injuries i.e. nervous breakdown/stress related claims they also start in the Injuries Board, however they are likely to be rejected and you are given a letter called an Authorisation by the Injuries Board to go ahead and issue proceedings in Court. Any aspect of medical negligence is also rejected by the Injuries Board system.

No. Remember the lawyer advises but you decide. It is your injury and you live with it. You may be in difficult financial circumstances and even though you are not recovered and advised not to settle you still accept the Assessment for financial reasons. It is your decision and you must live with it.