Civil Liability and Courts Act
The manner in which personal injuries claims are dealt with has been radically reformed in the last 15 years. This was driven by an attempt to reduce motor insurance premium which appeared to have become abnormally high in Ireland.
The 2004 reforms of personal injury legislation included increased and more specific sanctions in order to deter false and exaggerated claims. It provided that if a person who dishonestly gives or causes to be given, evidence which is false or misleading in any respect, and he or she knows it to be false or misleading, he is guilty of an offence.
Similarly, it is an offence dishonestly to instruct a solicitor, a person acting on behalf of a solicitor or an expert, any information or instruction that is false or misleading in any material respect which he or she knows to be false and misleading. An act is done dishonestly if the person does the act with the intention of misleading the court.
If a claimant in a personal injury action gives or adduces or causes to be given or adduced evidence that is false or misleading in any material respect which he or she knows it to be false and misleading, the court shall dismiss the claim, unless for reasons that the court shall state in its decision, the dismissal would result in injustice being done.
A court in a personal injury action shall if satisfied that a person has sworn an affidavit that is false or misleading in any respect, which he knew to be false or misleading, dismiss the claim unless, for reasons stated in its decision, the dismissal would result in injustice. An act is done dishonestly for this purpose, once again, if it is done with the intention of misleading the court.
A person guilty of any of the above offences is liable, on conviction on indictment to a fine up to €100,000, or imprisonment up to 10 years, or both. The offence may be tried summarily if the court is of the opinion that the facts proved or alleged constitute a minor offence fit to be tried summarily, the person, does not object to a right to a jury and the DPP consents. A person is liable, on summary conviction, to a fine up to €3,000, or imprisonment up to 12 months, or both.
Person Injury Claims
The 2004 reforms established that the Personal Injuries Assessment Board (PIAB) and significantly changed the rules in relation to personal injury litigation.
A “personal injury” claim is one relating to physical injury, a physical or medical condition or disease. The majority of such claims are road traffic, employer liability and public liability claims. Typically the claim relates to damage caused by the negligence of the defendant.
A two-year time limit applies to personal injury claims, as and from 2005. This runs from the date the event causing loss occurs or the date the claimant first had knowledge or is deemed to have knowledge, which is later.
There are different categories of damages in a personal injury case. General damages are for non-financial loss; usually pain and suffering, anxiety and loss of life expectation. It covers physical injuries and psychological consequences, including depression lack of enjoyment of life.
It is difficult to measure the quantity of general damages in personal injury claims. PIAB and the courts are obliged to have regard to the Book of Quantum. This attempts to set out a range of compensation level for different types of injury and physical loss.
Special damages are actual expenses incurred. These consist of losses to the date of trial and expected future loss. Loss of earnings is a significant category of special damages. Certain social welfare payments are deducted. Future loss of earning is usually calculated on an actuarial basis. Te purpose is to capitalise the loss at the date of the trial.
Compensation for personal injuries is granted as a lump sum. The sum is not taxable. Where there is a permanent and total incapacity, there is an exemption from incomes tax on the investment income arising from the compensation.
In 1995, Court and Court Officers Act gave power to the Rule of Court committees to make rules in personal injury cases allowing for admission in evidence of information, documents, reports and statements disclosed under that section. This applies notwithstanding any law to the contrary, in particular, the hearsay evidence rule.
PIAB (Now the Injuries Board)
PIAB, now known as the Injuries Board (PIAB), commenced in June 2004. The Board does not hear cases and acts on written documentation only.
An application is made to IB accompanied by a medical rapport. The defendant can consent to an assessment by PIAB. If they do so, an award is made, which can be accepted or rejected by either or both parties. If either party rejects the award, the claim can proceed to court proceedings.
The vast majority of personal injury claims must go to PIAB before proceedlings can issue. Where a claimant authorises his solicitor to deal with a case, PIAB must deal directly with the solicitor.
A Claimant in a personal injury action should, within two months of the event or as soon as practicable after that, give notice to the alleged wrongdoer, stating the nature of the wrong committed. If this is not done, the courts can draw implications which are adverse to the claimant’s case or can deduct or restrict costs.
If a claim is not settled at an early stage, an application must be made to PIAB. This must be accompanied by correspondence, a medical report, proof of losses and other documents. The claim must be registered with PIAB. The statute of limitation stops running as soon as PIAB acknowledges the application. The period will start running again, six months after issue of authorisation by PIAB, to issue legal proceedings.
When a claim is registered, PIAB sends a notice to the respondent (the person alleged to be responsible), enclosing the application form and documents. The respondent is asked to confirm whether he consents to assessment. They have 90 days to decide. They are deemed to consent if they do not respond. Cnsent to assessment does not admit liability. It may still be disputed in subsequent legal proceedings.
If the respondent consents to assessment, a PIAB assessor reviews and examines the file. The claimant or his solicitor is given confirmation of consent to assessment and is asked to furnish details of special damages. The PIAB has the power to seek confirmation of information from third parties, including earnings details from Revenue Commissioners. It may refer the claimant to a Doctor on its panel.
Injuries Board Assessment
Once the PIAB assessor makes a decision, the award is communicated to the claimant and the respondent. The respondent has 21 days to accept the award. The claimant is given 28 days and if no response is made, he is deemed to have refused it.
If both claimant and respondent accept the award, the claim is settled and an order to pay is made. This has the same effect as a court judgment. It can be enforced in the same way .
If either the claimant or defendant rejects or does not accept the claim, an authorisation will be issued to take legal proceedings If an award of damages is rejected by the claimant and accepted by the respondent, then if the claimant does not receive more in the subsequent proceedings, no costs may be awarded to him and the court may order costs against him i.e. that he pay costs.
The PIAB is under a duty to make assessments as soon as possible. A claim is generally to be assessed within nine months. This period can be extended if the PIAB gives notice and reason for extending time, for up to another six months.
PIAB do not generally make an order for costs. It may do so in the case of a vulnerable claimant. The cost of the PIAB stage of the application is not generally recoverable in the subsequent litigation.
Release to Court and Pleadings
If the case is released from the PIAB stage, it can proceed in the District court, Circuit Court or High Court as appropriate. There is a special form part of personal injuries summons or civil bill which must be used in each court. It requires full details of the claimant’s injuries, special damages and details of the fault claimed.
The particulars require certain details to be disclosed, including details of previous awards, medical attendants and loss of earnings. If this is not complied, with the proceedings may be dismissed.
There are special forms of defence and counterclaim.
Parties are obliged to swear an affidavit verifying their claims in full at the initial stage. A false sworn statement has criminal consequences.
Special Pre-Trial Requirements
In a personal injury case, the defendant may by notice to the claimant, lodge money at any time after the defence or within four months of the trial. Where the claimant has given replies to particulars or given additional particulars after this time, he may increase the lodgment within 21 days without an application to the court. At any time after which 18 months have expired from the date of the notice of trial, the defendant may make a payment into court without requiring court consent.
Both claimant and defendant must make an offer of settlement to each other, after the issue of proceedings and within two weeks of the notice of trial. The plaintiff must state what he would accept and the defendant must state what he would offer. After the hearing of the case, the judge can have regard to the terms of the offer and the reasonableness of the parties in making them. The judge may refuse an order for costs if the party did not act reasonably in relation to them.
Any party to a personal injury case may request a mediation conference at any time. The court may order a conference if it believes this would assist. This is presided over by a nominated chairperson agreed or appointed by the court. The chairperson must prepare a report for the court, indicating whether a conference took place and if so, the result, if a settlement was reached.
There is no requirement to settle at a conference, but there is an obligation to attend. Failure to comply with a direction to participate in a conference can be taken account in awarding costs.
There are special disclosure rules in a High Court personal injury case. Similar practices are followed in the Circuit Court. The claimant ’s solicitor must produce a list scheduling all reports from experts within one month of service of the notice of trial. This applies to experts who are to be called as witnesses. The defendant’s solicitor has an equivalent obligation to produce its list of reports of experts within seven days.
The parties must exchange copies of documents. Details of special damages, losses and proofs must be exchanged within one month of the notice after trial. There is a continuing obligation to exchange information. If a party defaults in these obligations, the court can direct compliance or make an order striking out the proceedings.
They are serious penalties for dishonestly giving false evidence and for dishonestly making a claim in a personal injury case.
The Court Service is to maintain a register of personal injury actions. It is to contain
- the name and address of the solicitor for each party to an action,
- the name and occupation of each party, the address at which he ordinarily resides, as specified in the pleadings.
It is to be open for inspection to those who show that they have a sufficient interest in the matter.