Injuries Board Assessment I
Scope
The Injuries Board assessment procedure applies to the following civil actions
- civil actions by an employee against his or her employer for negligence or breach of duty arising in the course of the employee’s employment with that employer;
- civil actions by a person against another arising out of that other’s ownership, driving or use of a mechanically propelled vehicle;
- civil actions by a person against another arising out of that other’s use or occupation of land or any structure or building;
- civil actions not falling into above categories other than one arising from the provision of health services, carrying out of a medical or surgical procedure in or the provision of any medical advice or treatment.
The Act does not apply to civil actions related to air or sea, transport which are within the scope of certain Conventions regulating liability.
Types of Claim
A civil action is an action is an action intended to be pursued for the purpose of recovering damages in respect of a wrong for personal injuries or for personal injuries and damage to property, but the only if they have both been caused by the same wrong. It does not include actions for any other relief unless it so framed in order to avoid the operation of the above provision. It does not include
- applications for compensation under the Garda Síochána compensation legislation;
- actions for breach of constitutional rights;
- actions for breach of the European Convention on Human Rights.
The Act is stated not to affect the right of persons to seek legal advice in respect of their claims. It is not to be interpreted as requiring the Injuries Board to implement any court like hearing or procedure.
Claims of the type set out above, are subject to mandatory application to the Board for assessment. The legislation sets out certain procedures which must be used by every claimant who wishes to recover damages in respect of the above claims, within the scope of the Act. It prohibits the bringing of a claim unless the specified conditions have been first satisfied.
Application
A claimant must make an application to the Board for an assessment of its claim. The application must be in a form prescribed by rules. The application form may require to be included
- documents that have been given or sent by the claimant to the person against whom the claim is proposed;
- copies of correspondence with the proposed defendant;
- a report prepared by a medical practitioner who has treated the claimant in relation to personal injuries, which is the subject of the claim;
- receipts, vouchers and other documentation in relation to loss or damage in respect of which special damages are sought.
Where a notice of any accident or occurrence giving rise to personal injuries is required prior to civil action being initiated, this may be required to be included in the required document. See separately in relation to the requirement for notice to be given within a certain period of the matter of incident, the subject of a personal injury claim.
Where a claimant wishes to bring proceedings in respect of his claim against one or more persons and he has omitted through oversight or ignorance of all facts, to specify in his application such persons as being persons liable to him, in a claim, the Board may issue an authorisation to bring proceedings nonetheless. It may defer the question as to whether to issue an authorisation unless and until the claim has been the subject of an assessment or a fresh assessment, as the case may be.
Proceedings and Pre-Trial Orders
Unless and until an application has been made to the Board in respect of the claim, proceedings may not be brought in respect of the claim. This does not prejudice the right of the claimant to invoke the jurisdiction of a court to make interlocutory (pre-trial orders) including orders to restrain the transfer of assets outside the State for the purpose of defeating the rights of another arising out of claim or the dissipation of assets or /and order for the preservation of evidence. The issuing of the motion is not the commencement of the proceedings for the purpose of limitation periods in the statute of limitations.
Such pre-trial claims shall be made by motion with or without prior notice. The court is to be satisfied that the making of the application is bona fide for the purpose of ensuring the fair and just disposition of proceedings, that could be brought in the event of issue of an authorisation and the that the making of the order is required in order to enable the fair and just disposition of those proceedings. The court is to ensure that the manner in which such application is dealt with does not prejudice any procedures which are being followed under the legislation in relation to the claim.
Subject to this, the above types of pre-trial application may proceed in the same way as would be the case if proceedings had been commenced. The same duties and obligations apply. If and when an authorisation issues, the pre-trial orders are deemed to be orders in the proceedings themselves. If no procedures are brought, the court may make such order as to the discharge of the order and cost as it deems necessary or appropriate in the circumstances.
Service on Respondent
As soon as practicable after receipt of an application, the Board is to serve notice on each of the persons, whom the claimant alleges is or are liable to him in respect of the claim. They are described as respondent. The notice is a notice to the effect that the Board has received an application by the claimant and it requests the respondent to state to the Board in writing whether he or she consents to an assessment under the below-mentioned procedure in relation to the relevant claim.
If the respondent states in writing within the period specified that he does consent or fails to respond within the period, then the Board shall subject to the below provisions, arrange for an assessment to be made.
If the respondent objects to an assessment within the period, it is the duty of the Board as soon as may be after the statement is received to issue to the claimant a document authorising the claimant to bring proceedings in respect of the claim.
If there are two or more respondents in relation to a claim, and one, but not all of them, makes a statement in writing not consenting to the assessment, then the Board shall make an assessment of the claim. If the assessment is subsequently accepted by the other respondent or respondents, it remains non-binding on the respondent, , who did not consent. An authorisation to bring proceedings shall state that the claimant has authorised to bring proceedings in respect of the claim only against the non-consenting respondent.
This provision is without prejudice to the provisions in relation to concurrent wrongdoers under the Civil Liability Act. Proceedings which are authorised to be brought are to cease to be maintainable if the amounts specified in the order to pay that is issued by the Board are paid to the claimant. If only part of the amount specified is paid, proceedings are maintainable only in respect of the balance.
Response of Respondent.
A statement by a respondent that he consents to an assessment or a failure to the respondent to respond to an assessment is not to be deemed an admission of liability. They are not capable of being used against him as evidence in any proceedings.
Despite the issue by a respondent of a consent to assessment or deemed consent on failure to respond, the Board is not required to arrange for making an assessment and may discontinue an ongoing assessment if it would not be appropriate to do so
- because in its opinion, there does not exist and there has not been previously entered into in relation to the type of personal injury or injury is to which the relevant claim relates 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 an assessment.
- due to the particular complexity of issues that will require to be addressed
- due to issues involving the interaction between each of a number of injuries the claimant alleges he or she sustained in the accident or incident concerned or the interaction between one or more such injuries and any existing condition or disease the claimant suffered from or any injury he or she previously sustained,
- because the injury or injuries alleged to be sustained consist wholly or in part of the psychological damage the nature or extent of which it would be difficult to determine by the means of assessment to which the assessors are limited to employing by the Act,
- because aggravated or exemplary damages are bona fide sought to be recovered in the relevant claim,
- in case the claim arises out of a trespass to the person, because the making of an assessment of the claim by the means to which assessors are limited to employing by this Act would not respect the dignity of the claimant,
- because the gravity of any injury or illness of the claimant is such that, were proceedings to be brought in respect of his or her relevant claim, an early trial of the claim would, in the Board’s opinion, be ordered to be held to meet the contingency of the claimant’s dying before the time the claim would otherwise, in the ordinary course of events, come on for trial,
- in its opinion, the period of time for which the making of such an assessment would have to be deferred (in order for a long-term prognosis in respect of the personal injury or injuries to which the relevant claim relates to be made) would fail to comply with the obligation to handle applications expeditiously;
- in its opinion, the person purporting to act as a next friend, or as the case may be, a guardian of the claimant or a respondent has a conflict of interest in the matter, or otherwise would not be entitled to act as a next friend or guardian of the claimant or respondent were the relevant claim to be the subject of proceedings, and steps are unlikely to be taken in a timely fashion to secure an appropriate replacement for him or her,
- in its opinion, the relevant claim falls within a class of relevant claims as respects which the Board has, with the consent of the Minister and the Minister for Justice, Equality and Law Reform, for the time being declared there to be other good and substantial reasons for its not arranging the making of such an assessment in respect of them.
As soon as the board forms any of the above opinions, it is to record it in writing and give reasons. Upon reaching its opinion or decision, the Board is to issue an authorisation. The authorisation authorises the claimant to bring proceedings in respect of the claim concerned.
The Board may decide not to arrange for the making of an assessment of a relevant claim if a fee or charge required to be paid under the legislation as not been paid. This is to be recorded in the Board’s record.
Presumptions
The Board is to presume for the purpose of its functions that the claimant and respondent have full capacity. If during the course of performance of its functions, a medical opinion is furnished to the effect that the claimant does not have the mental capacity, then the presumption is rebutted and the Board must not arrange for the making of an assessment of the claim or shall cease assessment unless there are other respondents, who are not of unsound mind. This does not apply if a next friend, committee or Guardian is acting for the plaintiff or respondent, as the case may be.