Injuries Board Assessment II

Assessment

Chapter 2 of the Personal Injury Assessment Board Act 2003 as amended sets out the procedure for assessment of claims by the Injuries Board.   It involves the assessment of the amount of damages the claimant is entitled to receive in relation to the claim, on the assumption that the respondent (defendant or defendants) is fully liable in respect of the claim.

An assessment is undertaken by employees of the Board assigned such functions, who are “assessors”.  They may be assisted by one or more persons who are retained as experts.  An assessment is to be made on the same basis and by reference to the same principles governing the measure of damages in the law of tort and the same enactments as would be applicable if the assessment of damages in the matter was made in a Civil Court.

The assessors are to make their assessment by reference to the information, records or other documents required or authorised by the Act to be furnished.  No hearing is to be conducted for that purpose.  If the assessment relates to a so-called “wrongful death” claim, the assessment is to specify the proportion of the damages for which each of the dependants is to be entitled.  This is applicable in the context of the cap on certain types of damages for distress and mental suffering, in claims brought by dependents of a deceased person who has been injured in circumstances which give rise to a civil claim.

An assessment shall not specify that damages are to be paid in two or more installments.

Fees and Charges

The Minister may make regulations allowing the Board to charge in respect of the handling of claims.  Charges may be payable by the respondent and the claimant.  Additional charges may be levied on the respondent or each of them for the purpose of defraying expenses incurred in making an assessment of an exceptional kind.

An exceptional kind in relation to an amount, means an exceptional kind relative to the amount of expenses typically incurred by the Board, in making an assessment.  Expenses incurred by the Board in arranging medical examinations is deemed to be of an exceptional kind. Different amounts of fees may be specified in respect of different amounts of claims.

The Board may refuse to deal with an application unless the relevant fee has been paid.  The charges may be recovered as a simple contract debt.  Charges may be imposed even if a settlement is reached.

Power to Require Information

Prior to assessment, the assessors may request such information and documents from the claimant as are in his possession or under his control, in addition to the documents submitted with the application, as they consider necessary for making the assessment.  They may request the respondent or respondents to furnish them with such information or documents in their possession or control as they consider necessary for the assessment.

If experts are assisting the assessors in making the assessment, they may make the following request if they consider it necessary to do so, for the purpose of enabling them to assist them in making the assessment. They may request that the claimant or respondent provide such assistance to the retained experts and furnish such information and documents to them additional to those referred to above or otherwise co-operate with those experts, in such manner, as is or are specified in the request.

The assessors may make the below request  for a medical examination if any information or documents furnished by the claimant, whether initially or pursuant to a request consisting of any medical opinion (whether a diagnosis or prognosis) in relation to the claimant’s injuries is not accepted as being correct by a respondent, or the assessors otherwise consider it appropriate to do so.

The medical examination is to be arranged by the Boar by one or more medical practitioners.The practitioner shall be a person or persons who have no pecuniary interest or other beneficial interest in, or material to, any matter which could reasonably be affected (whether favourably or unfavourably) by the outcome of the assessment. The medical examinations which the Board may arrange to be carried out under this section include a medical examination to be carried out in a place outside the State.

If a claimant fails to supply additional information or cooperate in relation to a medical examination, the assessors are to proceed to make the assessment as best they can, in the absence of the information or cooperation.  If the claimant fails to comply with a request in relation to a medical examination, the assessor shall, unless there is a legal reason for not doing so, make the assessment on the basis that the contention of the respondent concerning the information which gives rises to the request, was correct.

Information from Public Bodies

The assessors may request anybody including in particular any government department, such as the Department of Social Protection or a public body other than the Revenue Commissioners to furnish them with records, documents or other information in their control as they reasonably request for the purpose of verifying any item of loss alleged by the claimant in his claim, or complying with the provisions of any enactment which requires specified amounts to be deducted or to be taken into account in the making of an assessment of damages.

The records, documents or other information that may be the subject of a request include records, documents and information that comes into existence or into the possession of the body concerned, before the passing of that legislation.  It is the duty of the person or public body concerned to comply with the same.

The assessors may request the Department of the Environment to furnish particulars in relation to vehicles contained in their databases.  The purpose of this request is to identity insurance particulars.  If a person fails to comply with a request made by assessors, the assessors may apply to the District Court which may on hearing the application, may make an order directing that person to comply with the request.  Failure to comply is an offence.

A claimant, by making an application is deemed to consent to the Revenue Commissioners furnishing to the assessors, particulars or other information in their possession or control in relation to the person’s income. This is for the purpose only of the assessment and verifying items of financial loss claimed relating to the claimant’s income.

Provision of Advice

If the Board considers it reasonable to infer from the manner in which the complainant or respondent has completed or is completing a step required to be taken under the legislation or that it does not have a sufficient appreciation of the legal consequences of following the procedures generally under the Act, it is the duty of the Board to do one of the following;

• advise the claimant or respondent, as appropriate, of the desirability of obtaining legal advice in the matter;
• provide an explanation to the claimant or the respondent of the legal consequences generally of a failure to complete properly with the step or to follow properly the procedures under the legislation,
• provide such assistance as the Board considers reasonable to the claimant or respondent, in completing the step.

The Board is to ensure that the explanation or assistance is accompanied by a statement to the claimant or respondent, that this does not absolve the Board of its duty to cause an assessment of the claim to be made impartially.

No statement contained in a medical report or other document furnished to the assessors in respect of the claim, gives rise to a duty on the part of the Board in relation to the any of the above matters.

Completion of Assessment

When the assessors have made their assessment of the claim, they are to set it out in writing.  The Board is to serve it on the claimant and respondent(s) together with a notice.  The notice is a request, in the case of a notice served on the claimant, to the claimant to state within 28 days or such greater period as may be specified by rules whether he or she accepts the assessment. In the case of a notice served on the respondent, it is a request to him to state within 21 days, whether he or she accepts the assessment.

Where the claimant fails to confirm in writing, within the specified time, whether he or she accepts the assessment, he is deemed not to accept it.  Similarly, if the respondent fails to state in writing, whether he or she accepts the assessment, he is deemed to not to accept it.

In a case where either claimant rejects or is deemed not to accept the assessment, it is the duty of the Board, as soon as may be after the expiry of the period, to issue a document that contains an authorisation by which the claimant is authorised to bring proceedings in respect of the relevant claim.

Unless an authorisation issues because the assessment is not accepted or is not deemed to be accepted, then the assessment becomes binding on the claimant and the respondent (and each of the respondents), on expiry of the notice period of 28 days.  The assessment is not binding on a claimant where it is proved that, at the time of his acceptance or deemed acceptance, that the was not of sound mind. This does not apply to a claimant for whom or a respondent for whom a guardian, committee or a next friend is acting.

Where there are two or more respondents in relation to a claim and one but not all of them rejects or does not accept the assessment, the acceptance although accepted by the other respondent, shall not be binding on the respondents who do not accept.  In this case, an authorisation is issued to bring proceedings in respect of the claim against the non-accepting respondents.  This does not prejudice the civil liability provisions in respect of concurrent wrongdoers.

Minors / Persons Lacking Capacity

Where a person is represented by a guardian, next friend etc. (a minor or a person of unsound mind) the notice is to include a direction to the relevant next friend, guardian etc. that he should obtain legal advice from a person who is independent of him, as to whether the assessment ought to be accepted.

In the case of a claim by a minor or person of unsound mind or a claim relating to a proposed action for fatal injuries the committee, guardian etc., the acceptance is subject to the assessment being approved by the court. Where any legislation or rule of court requires the settlement to be approved then the legislation shall apply, with necessary modifications, to the assessment above, as if the proceedings were brought in relation to the claim.

The Court shall have jurisdiction to approve the assessment on the application being made of the next friend, committee or other people.  The Court shall order that the costs of the application shall be borne by the respondent or respondents.  Unless and until an assessment of a claim has been approved, the assessment shall not become binding.

If the Court does not approve an assessment,  it is the duty of the Board to issue to the claimant  an authorisation to take the civil action in relation to the claim.  This authorisation applies notwithstanding that the respondent has accepted the assessment.

Statements in writing in response to a notice by either the respondent or claimant, to the effect that they accept the claim, is not capable of being used as evidence against the other party in subsequent proceedings.  It will be wholly inadmissible.

Order to Pay

Within one month after the assessment becomes binding on the parties, the Board is to issue an order to pay.  The order to pay is to state that the respondent to whom it is issued is liable to pay to the Minister for Social Protection, the amount of recoverable benefits specified in the statement of recoverable benefits in accordance with the Social Welfare Act. It is to state that the respondent is liable to pay to the claimant the amount of damages specified in the assessment less this amount. The amount if any, directed to be paid under social welfare legislation is to be paid to the Minister / the Department.

If the assessment is binding on more than one respondent, the liability of the respondents shall be joint and several.  The order shall so state.  As between the claimant or respondents or between two or more respondents, an order to pay shall operate as if it was a judgment of a Court given for the amount concerned.  Accordingly, the provisions applicable to the judgments including provisions as to interest and other legal incidents of a judgment apply.

Court Rules may make adaptations of enactments or instruments as are necessary for the purpose of treating the order to pay as a judgment.

If the amount specified in the order to pay is paid, the payment is to be deemed a satisfaction of the claim for the purposes of the Civil Liability Act as if the claimant had agreed that the payment would be payment of full damages to him or her in respect of the claim.  If a part payment is made, the payment shall be a partial satisfaction for the purposes of the Civil Liability Act.

Multiple Respondents

As between—

• one or more respondents and either or both one or more non-participating respondents, one or more non-accepting respondents,
•  one or more non-participating respondents or non-accepting respondents and either or both  one or more other non-participating respondents, one or more other non-accepting respondents, and
•  any one or more of the foregoing persons and one or more other persons (not falling within either of the above cases, who are concurrent wrongdoers as respects the relevant claim,

an order to pay shall be regarded as a settlement by the first-mentioned respondent or respondents with the claimant of his or her relevant claim.

In circumstances where a claimant is not barred from bringing proceedings against a non-participating or non-accepting respondent, an assessment of the relevant claim or, if an order to pay in respect of it has been issued, that order to pay, shall be deemed an award of damages, of the amount or amounts specified in the assessment or the order to pay, made by the judgment first given.

Order to pay Fees and Expenses

An assessment may include a statement that the respondent who accepts or is deemed to have accepted the assessment, shall pay to the claimant, in addition to the amount of the assessment, a specified amount, being the whole or part, as the Board, in its discretion determines, of the amount of the  fees and expenses are those that, in the opinion of the Board, have been reasonably and necessarily incurred by the claimant in complying with the provisions of the Act in any Rule specified in relation to the claim.

If the assessment is accepted or deemed to be accepted, in accordance with the legislation, by the claimant or the respondent or one or more of the respondents,  the Board shall direct that the respondent or those respondents shall pay the claimant the amount specified.  The statement shall indicate, in brief terms, the nature of the fees and expenses to which the amount relates;

Not later than 10 days before the expiry of the period, a  respondent may request the Board to furnish him further particulars as he or she may reasonably specify in relation to the nature of those fees and expenses and the manner in which they have been calculated by the Board.  The Board is to comply with such request.

There are special provisions and mechanisms for determining fees and expenses incurred by next friends or committee.  Provision is made for their fees and expenses.  If it cannot be agreed what the fees and expenses have bee reasonably incurred by them in so acting, they may be referred to taxation or to the County Registrar.