Injuries Board

PIAB was established by the Personal Injuries Assessment Board Act 2003 which was signed into law on the 28th December 2003.

It did not come into operation until the 01 June 2004 from which stage all employer liability cases were obliged to be referred to it. The Board increased its remit to all other personal injury cases from the 22 July 2004. The exceptions to this rule are medical negligence - cases, Garda Garda Compensation cases and a few other limited exceptions (See Section 3 of the Act).

The result of this is that it is now not possible to issue proceedings for any case within its remit until you have received the authorisation of the Personal Injuries Assessment Board.

This procedure is very different to what we personal injuries practitioners have been used to in the past. Before the passing of the PIAB Act, it was usually the case that you would write a letter before action to the third party, obtain your medical reports, either attempt to settle or failing that issue proceedings against the defendant at which stage the case would either proceed to trial, settle at or before trial or settle some time during the course of the proceedings. This has now all changed.

The PIAB Act states that nothing in the Act shall stop a claimant from receiving independent legal advice. However, the actions of the Board itself have made life considerably more difficult for the claimant in respect of receiving legal advice. The modus operandi of the Board to date is that it will correspond directly with claimants even where a solicitor is on record. This procedure was challenged in the High Court by way of judicial review in the case of Declan O'Brien -v- the Personal Injury Assessment Board which was heard by Mr Justice McMenamin. Judgment was delivered and Mr O'Brien was successful. The result of this that PIAB are now corresponding directly with solicitors where nominated.

If the respondent consents to an assessment this does not mean that he has admitted liability. This is a common misconception. It simply means that he is prepared to go to the PIAB to assess his claim but if at the end of the process one of the parties decides that they do not wish to accept the offer then the respondent can reintroduce all issues of liability at that point.

The claim is, however, decided on the basis of full liability and issues of, say, contributory negligence cannot be taken into account.

If the respondent confirms at or before the end of the 90 day period that he does not consent to assessment, PIAB must provide a document called an "authorisation" to the claimant. This document will then allow the claimant to issue proceedings in the normal way against the respondent.

There are a number of other situations in which an authorisation may be provided.

Firstly, the Board had the discretion not to deal with certain claims if it chooses not to.

Among the claims which it has discretion not to deal with are ones where:-

a. It is complex and there is an interaction of one or more injuries which makes the decision complex.

b. Where the injuries consist wholly or in part of psychological damage.

c. Where aggravated or exemplarily damages are bona fide sought to be recovered.

d. Where the claim arises out of the trespass of the person.

e. Where there is a possibility that the claimant may die before the claim could be properly assessed and therefore proceedings may be more appropriate to be issued.

They may also provide an authorisation where it is clear that they will not be able to reach a prognosis within the fifteen month period with which I will deal later.

An authorisation will also be provided in the circumstances where there is more than one respondent and one of the respondents does not wish to proceed to assessment.

A situation then arises where you must go to assessment against what is called the participating respondent. You will then have to issue proceedings separately against the non-participating respondent(s) leaving the ridiculous situation where you are pursuing the same claim through two different avenues.

Returning to the assessment procedure, however, if the respondent consents to assessment, then the assessment continues and the PIAB will then proceed to process the claim. The respondent at this point must pay over €1,000 to PIAB as a charge for the processing of the claim. This consists of €850 for the administration charge and €150 towards the cost of a medical report.

They are supposed to ask the respondent if he is happy with the contents of the medical reports submitted by the claimant or whether he wishes to submit his own medical report. If the respondent says that he wishes to submit his own medical report and says that there are issues between the two medicals with which they are not happy, then a third medical report will be obtained which will be arranged by the PLAB with their own medical panel. This medical report will then form the basis of the award. However, experience so far has demonstrated that the PIAB are commissioning their own report in nearly all cases, even where there is no dispute between the parties. They have been claiming that, the initial report submitted by the claimant is not sufficiently detailed but seeing as this happening in almost all cases, you would wonder what the point in submitting your own report at all is.

Every claim has an individual assessor appointed to it. The assessor will collate the documentation and will reach a decision based on the relevant medical reports together with the special damage submitted.

The reference for the award will be the Book of Quantum which is available on PIAB's website www.injuriesboard.ie

The award has to be made by PIAB either within a nine month period or if they cannot reach it within that time limit, they are entitled to seek an extension of a further six months.

They must, however, reach a decision within fifteen months after the consent to assessment by the respondent. If they find themselves unable to reach a decision within that fifteen months, then they must release the case and provide an authorisation to issue proceedings to the claimant.

Assuming that the assessor can reach a decision within the fifteen month period they will then make an award which will be communicated to both parties. If one of the parties refuses the award then an authorisation is provided and the matter can proceed to court. However, if both parties accept the award then it is deemed to be a binding award and it has the same power and effect of a judgement. It's important to note that the claimant has 28 days to accept the award and the respondent has 21 days. A failure to respond results in deemed rejection by the claimant and deemed acceptance by the respondent.

No costs are awarded in respect of applications to the PIAB unless it involves an infant or a person of unsound mind in which case the award must be ruled by the Court and the claimant is entitled to the costs of that ruling. It is clear, however, that any other costs are a matter for solicitor and client and any claimant will have to be advised of the effect of this when considering the nett award and indeed should be so advised of this possible eventuality at the initial consultation.

It is also important to note that the assessment made by the PIAB is not admissible in any future proceedings.

If either party rejects the award it cannot be referred to in any way and it is effectively as if PIAB never occurred.