Personal Injury Claims Ireland
For many years it was thought that the cost of motor insurance in Ireland was so high because of high legal costs through personal injury claims in Ireland. To this end the Personal Injuries Assessment Board (PIAB) was introduced in 2004. This brought about fundamental changes to the way personal injuries claims were brought in Ireland. However, it did not have the intended effect of dispensing with solicitors who still now form the major part of personal injury litigation. So while you could go it alone, most people choose to go through a solicitor.
What Types of Personal Injuries Claims are there?
Firstly, personal injury has been defined as “including any disease and any impairment of a person’s physical and mental condition”. Obviously, this is a very wide definition and as a result, personal injury litigation has become very widespread covering many areas over the last number of years. The most common causes of personal injury claims are accidents on the road (Road Traffic Accidents “RTA”), Injuries at work (Employer’s Liability “EL” claims) and Public Liability (“PL” claims). You can also have injuries from defective products and, of course, bullying. There is also medical negligence which has created its own large body of complicated case law and is dealt with in a different section of our website. You might also want to bring a case though nuisance arising from breach of contract or in rare instances from defamation of character.
Injuries and Illnesses
You may have a personal injury where you can seek compensation. The most frequent types of personal injury are neck and back injuries and those involving broken limbs but, of course, they can literally be anywhere from head to toe!
Psychiatric or psychological injuries are also common and often form part, if not all of the personal injury claim. The most frequent category of psychiatric injury is post traumatic stress but other instances including depression can constitute a personal injury capable of compensation. We often don’t know the full extent of these injuries until we take up your medical records and get your medical reports.
In Ireland over the last few years we have also seen Army deafness claims, asbestos claims, blood transfusion claims and sexual abuse injuries. Where there have been infected blood products and sexual abuse claims, tribunals have been established in order to provide compensation to victims. Whatever the type of personal injury, we have the expertise to help you.
Statute of Limitations
Whenever we are briefed on a personal injury claim, we will always look to the Statute of Limitations to establish whether the claim is within time. The law is very strict in this area! Under Section 7 of the Civil Liability and Courts Act, 2004 the time limit for bringing a claim for personal injuries caused by negligence, nuisance or breach of duty cannot be brought after the expiration of two years from the date:-
a. on which the cause of action accrued; or
b. when the Plaintiff first had the requisite knowledge as defined in Section 2 of the 1991 Act
What that essentially means is that you have two years from when the accident occurred or from when you became aware of an injury occurring to you. This does not apply to cases of assault and battery which carry a six year limit. Interestingly, personal injury involving airlines or shipping vessels or cases against the Estates of Deceased persons also carry two year limits and always have done. Please note for defamation cases the time period is one year which can be extended to two in special circumstances only. The bottom line is if you have a claim, or think you might have a personal injury claim, do not hang around!
Damages in Personal Injuries Claims
Traditionally this area would have been the subject of much case law (and much argument) and until the introduction of the Book of Quantum (a book saying what amount of damages each injury should get) by PIAB it rarely followed any particular pattern or guideline.
The awarding of General Damages is an attempt by a Court to compensate the Plaintiff for non-pecuniary losses suffered by the Plaintiff as a result of the Defendant’s wrongdoing. Such non-pecuniary losses are generally pain and suffering, loss of amenity and loss of expectation of life. Suffering can include physical injury and pain, psychiatric illness and symptoms, fear, anxiety, depression, embarrassment and lack of enjoyment of life. Loss of amenity is the loss and restriction of activity that once gave the person satisfaction in life. As solicitors it can be difficult to measure such compensation exactly, that is why we rely on medical experts to help us.
General Damages have traditionally been divided into two figures, the first representing pain and suffering to date and the second figure for such pain and suffering into the future. Generally, this has been the approach of the High Court in awarding damages however, the lower Courts have not made such a division and generally award a single global figure. Since the Book of Quantum was introduced, the judiciary are obliged to have regard to the guidelines set down when making General Damages. However, different Judges have been seen to approach the awards in their own individual way, some by referencing the Book whilst others not at all.
PIAB in awarding General Damages does not make any figures available for psychological damages or scars for obvious reasons.
General Damages for “Catastrophic Injuries”
Irish Courts have acknowledged the difficulty in assessing the appropriate level of General Damages for personal injury, especially where those injuries are of a catastrophic nature. The Supreme Court set down an effective cap of a maximum figure of £150,000 under General Damages in the Sinnott –v- Quinnsworth Limited case. Here the Plaintiff was rendered quadriplegic as a result of a road traffic accident and the Court observed that he changed from being an active, healthy young man into a dependent, paralysed person who was conscious of his incapacity and his bleak future. At that time, personal injuries actions in the High Court were before a jury. The jury had awarded the Plaintiff the sum of £800,000 for General Damages in addition to Special Damages to cover all financial loss and expense past and future. The Judge commented when reducing the figure for General Damages to £150,000 that “a yard stick of a reasonable nature must be applied if reality is to be retained in the assessment of such compensation”. In recent years the cap of £150,000 has been increased on the basis of inflation. For instance, in Kealy –v- Minister for Health the Judge increased an award of £165,000 for General Damages made to the Plaintiff by the Hepatitis C Compensation Tribunal to £250,000. Here the Plaintiff’s injuries were clearly catastrophic.
Special Damages are awarded for the financial loss suffered and expenses occurred by a Plaintiff as a result of the Defendant’s wrongdoing. These are also referred to as “out of pocket expenses”. Special Damages claim is usually formulated on the basis of actual expenses and liabilities incurred up to the date of the trial and future loss, being the estimated anticipated loss or expense to the Plaintiff into the future as a result of the personal injuries sustained. Calculation of future loss here often requires actuarial evidence so we would use Actuaries to help us come up with the appropriate amount.
Past Loss of Earnings
Loss of earnings is one of the main heads of damage in personal injuries actions. Clearly, a successful Plaintiff should be entitled to recover the net loss of income suffered by him or her for the period that they were unable to work as a result of injury to the date of the trial. Loss of earnings recoverable are those that the Plaintiff would have otherwise received into their hand after deduction of taxes that the Plaintiff would normally have paid. Please note however, that not all Social Welfare payments are deductible. Past loss of earnings are usually vouched by the Plaintiff’s P60 for at least a year prior to the injury together with a letter to vouch from the employer setting out the figures for the Plaintiff’s gross and net loss of earnings for the relevant period including overtime and bonuses. Should it be difficult to get this information from an employer, then the solicitor for the Plaintiff would seek that information through bringing a Motion for Discovery. Self employed persons usually prove their loss of earnings through their annual accounts. Difficulties will arise for any Plaintiff whose income has not been fully declared for tax purposes and any claim for undeclared income may result in a referral to the Revenue Commissioners.
Future Loss of Earnings
As stated before, in general this requires an actuarial calculation to capitalise the loss at the date of Judgment. A Court will look at the following:-
- the former earning capacity of the Plaintiff
- the Plaintiff’s present physical condition
- the Plaintiff’s prospective physical condition
- the state of the labour market
- the particular trade or skill of the Plaintiff and their prospects for exercising it in the future
Hospital and Medical Expenses
The Plaintiff is entitled to recover all medical expenses reasonably incurred from the personal injuries sustained and would normally include doctor’s fees, physiotherapy fees, the cost of medical appliances and any other medication. Generally, it is sufficient if the Plaintiff produces the appropriate receipts to vouch or prove these items. Should there be special future expenses required, then actuarial evidence will be required.
Taxation of Personal Injuries Awards
Compensation awards and personal injuries actions are treated as capital rather than income for taxation purposes. Section 613 of the Taxes Consolidation Act, 1997 exempts sums obtained by way of compensation or damages for any wrong or injury suffered by an individual in his or her person or in his or her profession from Capital Gains Tax. The actual settlement or award sum received in a personal injury action is not subject to tax. However, please note that sums earned on the investment of such damages will be subject to income tax unless the injured party comes within Section 189 of the Taxes Consolidation Act, 1997. That section provided a total exemption from income tax on sums earned on the investment of compensation in circumstances where the injured party was permanently or totally incapacitated by mental or physical infirmity from maintaining themselves.
The Personal Injuries Assessment Board (“PIAB”)
PIAB was established by the Personal Injuries Assessment Board Act, 2003 which was signed into law on 28 December 2003. It is a purely paper based system which conducts no oral hearings and makes an award based upon medical reports and with reference to a book of guidelines and damages known as the Book of Quantum. An application is first made on behalf of the claimant and must be accompanied by a medical report. Then the party against whom the claim is being made, known as the respondent must decide whether to consent to such assessment by PIAB. If they do, an award is made which may be accepted or rejected by either or both parties. If the respondent refuses consent to assessment or either party subsequently rejects the award, then the claim may proceed to Court proceedings. If both parties accept the award, the claim is settled.
It is easy to see why you would need to retain a solicitor when dealing with a personal injury claim. We at Healy O’Connor Solicitors use advanced case management software to progress your file efficiently. We deal with all of our clients in a friendly, jargon free manner. We look forward to helping you with your personal injury claim.