Personal Injury Claims
By Eoin P. Campbell, LL.B., Solicitor
Do I have a Personal Injury Claim?
The first question about personal injury claims in Ireland that many clients ask their solicitor after they have been involved in an accident is if they really have a valid injury claim. In addressing this question, your solicitor will consider a range of factors, including the existence of an actual injury, negligence, liability, statute of limitations, and other important issues.
Personal Injury or damage
The first thing that is to be remembered when pursuing a personal injury claim is that it is in fact just that: a personal injury claim. The plaintiff must have sustained some form of injury either physical or psychological as a result of an incident. Even where the other party, be it a driver, doctor, or employer has indeed acted negligently, even criminally so, it should be understood that with regard to the civil law, a potential plaintiff can only claim compensation for a personal injury loss or damage that he or she has in fact sustained. A near miss – other than where it can be proven to have caused, for example, a severe psychological trauma – is not sufficient to justify compensation being awarded.
If you have not sustained a personal injury in an accident, you are of course still entitled to attempt to recover the costs of personal property that may have been damaged or destroyed.
Personal Injury Negligence
The second factor to note is that the injury sustained must result from the negligence of someone who had a duty of care towards you at the time of and in the circumstances of the accident. For example, employers are expected to provide, within reason, a safe working environment for their staff, shop or restaurant owners to their customers, doctors for their patients, etc.
For example, if Brian falls down a stairs in a restaurant and suffers a serious back injury, he may not be able to successfully claim against the restaurant owner if the stairs conform to all the required safety legislation and there have been no other negligent acts on the part of the defendant in relation to the accident. A court may well find that Brian’s injury was due to misfortune or his own carelessness and that therefore the proprietors of the restaurant can not be held responsible for his personal injury. Your solicitor will advise in detail regarding other situations where a duty of care may exist.
Liability for Personal Injuries
The cause of an accident is not always obvious. In many situations, one party may be completely to blame. However, it is also true that more than one, or several, factors contributed to the accident that has occurred. Moreover, one of the causal factors may have in fact been the negligence of the injured party himself. How then can blame be apportioned? Is the injured party entitled to any form of compensation if he or she has contributed, albeit slightly, to their own downfall? These are all issues that your solicitor will need to analyse with you.
It may also be decided by the court, or indeed agreed between the parties, that both the defendant and the plaintiff were partially at fault for the plaintiff’s injury and in such circumstance the principle of contributory negligence applies.
Contributory negligence is the legal principle that an injured party i.e. the plaintiff, may possibly have contributed to his or her own injury by acting in a negligent manner when faced with the obvious and known conditions. When this is compared with the negligence of the defendant (or defendants), the extent of contributory negligence may defeat the plaintiff’s case (i.e. the claim will be unsuccessful) or reduce the amount of compensation awarded. Often, for example, it may be agreed that the plaintiff bore 25% of the responsibility for his or her accident while the defendant was responsible to a degree of 75%. In such circumstances, the plaintiff’s damages, assessed by the severity of his or her injury and loss, will be reduced by 25%.
Negligence without an injury therefore, or alternatively, an injury without negligence, are not enough to pursue a successful personal injury compensation claim.
As obvious as it may seem, it should be remembered that your health and safety (and in the case of a road traffic accident that of your passengers or anyone else involved like pedestrians) is considerably more important than any potential personal injury claim that you may have. If anyone has been seriously hurt, an ambulance should be called immediately (together with the Gardai if appropriate – and it always is appropriate if there are any physical injuries).
It is of the utmost importance that you report to the casualty department of the nearest hospital, or at the very least, make an emergency appointment with your general practitioner, should you have been injured in a road traffic accident. Even if you feel that your injuries are not particularly serious it is still advisable that you see a doctor. Never underestimate peace of mind. The reality is that monetary compensation is no substitute for your health and well-being and as any solicitor who specialises in personal injury litigation can tell you, a common remark from clients who have received large settlements after being seriously injured is that they would exchange the money in order to revert to their prior health and fitness ‘in a heartbeat’. You should also remember that you are probably not in a position to assess certain types of injury that can take some time to appear, such as whiplash.
It should be noted further that your attendance at hospital or with your local doctor will be recorded in your medical records which may later be used in evidence to support your claim. You should ensure that every single consultation, every prescription, and every treatment are recorded (this is standard procedure anyway).
Police – Reporting to the Gardaí
Following a road traffic accident, in particular, it is essential that you report the matter to the Gardaí. If there are no obvious injuries at the time, the Gardaí may indicate that they will not be attending the scene. This is in accordance with the general policy to allow the drivers of both vehicles resolve the matter themselves. With regard to injuries sustained at work or due to trips or falls etc. the Gardaí will not usually become involved unless the matter concerns criminal negligence. If you think that this may be relevant for your accident, contact the Gardaí at the first opportunity.
As one would expect, should the road traffic accident (or otherwise) have been of a more serious nature and an ambulance has been called, the Gardaí will attend and take statements from the various parties and witnesses (if any) and make a sketch of the accident scene. The Gardaí investigation may may result in a prosecution being brought to the courts.
If, as is often the case, the Gardaí do not attend the accident scene it is advisable to visit your nearest Garda station at the earliest opportunity to request that they take details of the accident i.e. names, insurance details and registration numbers of both parties and the date, time, and location of the accident itself. Each Garda station keeps a road traffic accident report book precisely for this purpose.
Personal Injury Claim Formalities
Road Traffic Accidents
As most people are no doubt aware it is very important to exchange names, addresses, and insurance details with the other driver following a road traffic accident. This is, however, not always possible as one or both parties may be very seriously injured or perhaps aggressive and confrontational following the collision. You should always note the registration number of the vehicle (even when the other party has appeared to be co-operative; do not assume that the other party is as honest as you!). The identity and insurance details of the other party can usually be later verified from the registration number.
No Driver Contact Information and Hit and Run Accidents
It is not always possible to obtain details of the other driver at the scene of a road traffic accident. Of course when serious injury occurs this will undoubtedly take precedence over the exchange of names, addresses, and insurance details. If you have been unfortunate enough to have been involved in an accident such as this please note that your solicitor can still pursue a claim on your behalf. Should the Gardai have attended the scene of the accident, your solicitor can very simply request and pay a small fee for the details of the other driver and a copy of the relevant Garda report.
Alternatively, one may well have been a victim of a hit and run incident or have later discovered that the driver of the other vehicle was uninsured at the time of the accident. In such circumstances please note that your Solicitor can submit the matter to the Motor Insurers Bureau of Ireland (MIBI), an organisation that exists to protect the victims of road traffic accidents when the party at fault is untraced or uninsured. The MIBI can act as the ‘insurer’ of the unknown or untraced driver and can, if appropriate, make a compensation payment to the victim.
Have the Incident Recorded in the Accident Report Book
In the case of an accident at work, in a shop, a restaurant or another place of business it should be noted that your employer or the proprietor should normally keep an accident report book on the premises. If possible you should insist that details of the incident are recorded immediately following an accident. It is important that you do not admit responsibility for the accident. Your solicitor will usually later request copies of the accident report book which will be used to support your case.
Make Use of Technology
In modern Ireland, it is fair to say that most of us own a mobile phone, which should obviously be used immediately following an accident to contact the Gardai and if necessary an ambulance. We should also utilise the camera and/or video function present on most modern cell phones to record images of both vehicles (showing damage to the cars and their road positioning) following the accident. Furthermore, it may also be useful to your claim if the pictures can give an accurate impression of the weather and road conditions. Obviously the licence plate number of the other vehicle can also be recorded in this way. This method can also be used if possible and if appropriate to record the details of any other accident scene be it at work, in a shop etc.
Never Admit Liability
It is very important that you do not admit any level of liability at the scene of the accident. In fact, it is very often a condition of your insurance policy that you must not admit liability following an accident. It is perhaps best policy not to discuss liability for the accident at the scene if at all possible. Even in circumstances where it is very clear that the other party has been at fault, one should remain polite at all times and assist the other driver if he or she has been injured and then exchange contact details.
This principle is also true should you have been injured due to a fall or an accident at work. Always try to remain polite and ask that the details be recorded in the accident report book without admitting any responsibility for your own accident. A copy of the entry in the accident report book will later be requested by your solicitor together with CCTV footage of the incident should any exist.
Conversely, you may assume that somebody else is fully liable for your personal injury claim but in fact the situation may be more complex. Establishing the facts about liability are one of the key reasons why you should contact a solicitor as soon as possible after a personal injury.
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Will I have to go to Court for my Personal Injury Claim?
This is an exceptionally common question that is asked of personal injury claims solicitors by their clients. As one would expect, a professional and competent legal team, i.e. a solicitor together with perhaps both senior and junior barristers, will prepare every case to the highest standard and on the assumption that it will go to court. They will be ready for a full trial on the facts if necessary.
The reality, however, is that very few personal injury cases ever go to trial. The vast majority, perhaps more than 97%, of such cases are settled between the parties beforehand. In practice, personal injury cases will come before the court normally only when the parties have failed to agree on a suitable amount of compensation (where the victim/plaintiff and his or her lawyers feel that the amount of money that has been offered is not enough to fairly compensate for the personal injuries, loss, and damage that he or she has sustained). Moreover, it should be noted that very often judges will frown on personal injury litigation cases that come before the courts when only the quantum of damages is in dispute. It is very often the judge’s view that in such circumstances it should be possible for the parties to reach a settlement that reflects established principles without referring the matter to the courts which are already overworked.
Other circumstances where a personal injury claim may go to court include cases where no compensation has been offered to the plaintiff/victim at all, i.e. the defendants assert that they are not liable for the plaintiff’s injuries. This situation may arise for example where there has been a disagreement over the facts or events of the incident itself.
Even when a court date has been set a settlement can still be reached between the parties and it is in fact not unusual that a case could be settled on the very morning that the matter has been scheduled to go to trial.
What should also be noted is that as the plaintiff, it is you who retains the authority to agree to a settlement of your claim. Your solicitor or barrister will only ever advise you on a settlement figure and has no authority to settle the case without your express permission to do so. Your solicitor and barrister will advise as to what, in their professional opinion, your case is worth and as to whether or not you should accept any offer of settlement that has been made. This is, of course, a very important decision as the compensation is paid by the defendants (with very few exceptions) in full and final settlement of all actions and personal injury claims arising from your accident. Even in the event, therefore, that your injuries deteriorate or later prove to be more serious than was believed at the time of settlement, you will retain no further claim or recourse against the defendant or his or her insurers.
The amount of compensation to which a plaintiff is entitled depends entirely on the individual factors in each case. It is important to remember that no two cases are identical and neither are the injuries sustained or personal circumstances of the people involved. In the early stage of the preparation of your personal injury litigation case, it is often very difficult to attempt to place an accurate valuation on a claim.
Obviously, your solicitor is not a medical professional; he or she is not qualified to, and therefore will not, offer a diagnosis of your injury or a prognosis for the recovery period from same. The role of your solicitor is to ensure that the settlement figure or award accurately reflects the personal loss, injury and damage that you have sustained as a result of your accident. In order to do so, he or she will take the greatest care to construct the strongest possible case on your behalf.
Your solicitor will rely on medical evidence from your own doctor including medical records (showing any attendances at hospital or with your general practitioner in relation to your accident), and perhaps commissioned reports from specialist consultants.
After taking your initial instructions, your solicitor will need certain documents, such as medical reports from any medical practitioners whom you may have attended. These early reports are normally of a preliminary nature, and will be used to decide in which court proceedings should be issued. The District Court has jurisdiction to make awards of up to approximately €6,000, the Circuit Court has jurisdiction up to approximately €40,000, and the High Court has an unlimited jurisdiction. However, most personal injury claims must be referred to the Injuries Board Ireland before Court proceedings can be issued.
The Injuries Board Process
The Personal Injuries Assessment Board (now known as the Injuries Board) was established in 2003 in order to provide a procedure for processing personal injury claims which would previously have been dealt with through the Court system.
The intention behind the setting up of the Injuries Board was to speed up the processing of claims and to reduce the cost of processing those claims. The aim was to encourage claimants to bring claims themselves to the Injuries Board and not to use a solicitor. However, although claimants can bring their own cases to the Injuries Board, over 95% of claimants still choose to engage a solicitor.
All injury cases must be referred to the Injuries Board (other than those arising from medical negligence).
The Injuries Board handles all personal injury claims relating to motor accidents, accidents in the workplace and those involving public liability (ie. accidents in public places).
The claimant must submit to the Injuries Board a completed application form, together with a fee of €50 payable to the Injuries Report and a medical report detailing the injuries.
If the person accused of being responsible for the accident (the respondent) does not agree to an assessment by the Injuries Board, then the case will be released by the Injuries Board and legal proceedings can be pursued in the usual way.
Assuming the respondent agrees to the matter being handled by the Injuries Board, then the Injuries Board will, in the vast majority of cases, proceed to make an assessment of the compensation which should be paid to the claimant. The Injuries Board will make their assessment within a period of no longer than 15 months from receiving the original application. During that period, the claimant may be asked to attend a medical examination arranged by the Injuries Board. There is no oral hearing before the Injuries Board.
When the Injuries Board awards compensation then either the claimant or the respondent can reject that award and, if either rejects the award, then the claim can be pursued through the Court system in the normal way. If the award compensation is accepted by both parties, then a cheque will issue shortly after to the claimant. In addition, although most claimants do use a solicitor for their application, the Injuries Board will not, in most cases, pay any legal costs to you.
The amount of compensation paid for a personal injury claim does not necessarily increase with a bigger, more dramatic crashes or accidents. It is important to remember that compensation is paid for the injuries that someone has actually sustained. Unless a psychological injury or trauma can be proven to have occurred, the nature of the accident is of very much secondary importance to the injuries that have been sustained by the plaintiff. Often, however, your solicitor or barrister will make reference to the dramatic or traumatic nature of the accident in negotiations or at trial as same will of course present your claim in a more impactful way and may contribute favourably to the award or settlement. This is particularly true in car accidents where the guilty party has been found guilty of negligent driving or drink driving.
Generally speaking, the costs of any medical treatment that you have required or will require due to the injuries that you have sustained will be compensated in full. You should ask your solicitor for details and ensure you keep copies of all bills.
Type of Personal Injury
Injuries are valued according to their level of seriousness and the impact that they may have on the victim’s life. The permanency and persistence of the injury are of course also important factors.
Is the injury sustained likely to be permanent or have long-term consequences? Obviously the longer that symptoms are expected to be present the larger the compensation. What is also very significant is the age of the victim. If an injury is expected to have permanent effects, very often a similar injury may be ‘worth’ more to a younger plaintiff than an older person. This is due to the simple logic that a younger person can be expected to have to cope with the consequences for more time. On a basic level, for example, if a 20 year old person loses a limb, the principle is that he or she may have to live with that injury for potentially 60 years or more. It can be assumed that a person of 70 years old who suffers the same level of injury will not have to cope with that disability for the same length of time. Your claim value may also rise further if the doctors consulted specify that you will require future specialist medical care.
Your medical history and records are an important factor in assessing your claim. If you have a prior history of similar or identical injuries and of treatment of the same area of the body this may affect your claim significantly. An important issue is whether the accident was the primary cause of the injury or only an aggravating factor.
Impairment of Quality of Life
Our work or careers are not the only important feature of our life and as such any claim for personal injury compensation will take an impairment or loss of quality of life into account when value is being assessed. This is a very individual assessment for each plaintiff as every person’s passions and interests will be different; a significant injury to the index finger for example may be viewed more seriously if it can be proven that the plaintiff was a keen amateur pianist prior to the accident.
Severity and Persistence of Pain Suffered
The very principle behind personal injury compensation is to compensate you for your injury and related suffering. Therefore, the greater the pain suffered and persistence of the pain, the higher the compensation awarded is likely to be.
Loss of Earnings
Strictly speaking this is a separate aspect to the personal injury claim but it often causes confusion for clients and frustration for both solicitors and barristers. Clients may often compare their settlement or award to that of a friend or acquaintance who received €100,000 more than them for a similar injury. This may well be due to a significant loss of earnings which a plaintiff has been awarded due to a lengthy absence (or predicted absence) from work. The figure awarded, of course, corresponds to that person’s earning power or potential earning power. With respect to the loss of earnings (be it past or future) aspect of the claim, the gravity of the injury itself is only relevant insofar as it restricts that person from working. Personal circumstances will, of course, be a factor. A different type of injury may have entirely different consequences for the plaintiff depending on their respective profession.
Is it Too Late to Make a Claim?
One of the first steps that a solicitor will need to consider in assessing any personal injury claim is to consider whether it is, in fact, too late to bring the action. The Statute of Limitations is the time limit within which the injured party can issue proceedings. In accordance with the Courts and Civil Liability Act 2004, in injured person has typically two years from date of knowledge to start proceedings.
More often than not, the date of knowledge will be the date on which the injury was sustained. It is therefore important that an injured party contacts a solicitor at their earliest convenience following an accident. The harsh reality is that, save for several specific exceptions, the opportunity to make a compensation claim will be lost precisely two years after the date of knowledge. If your circumstances do not fall within one of the categories discussed below your solicitor may well be unable to assist you at that stage.
Injuries to Children
In the case of a minor it is important to note that the date of knowledge of the injury is in fact the minor victim’s eighteenth birthday i.e. time does not begin to run against the injured infant until the infant reaches his or her majority (eighteen years of age). Thereafter, under current law, the injured party (who has now reached their majority) has two years within which to issue proceedings in court. The minor can however pursue a compensation claim before his or her eighteenth birthday provided a parent or guardian acts as his or her ‘next friend’. It is therefore still preferable that you contact a solicitor at the first opportunity should your child have been injured in circumstances where another party was at fault.
How is the Statute of Limitations Date Calculated?
Provided that you contact a solicitor as soon as possible following an accident, the Statute of Limitations should not jeopardise your claim in any way. Your solicitor will be well aware of the relevant time limits and will ensure that, for example, the relevant forms are lodged with the Injuries Board Ireland within the allocated time.
To explain the procedure however, it should be noted that the following dates are essential in calculating the Statute of Limitations.
a) Date of the accident.
b) Date of expiration of the two-year period from the date of the accident.
c) Date of lodgement of the Injuries Board Ireland form A.
d) Date of the Section 50 acknowledgement letter.
e) The Injuries Board Ireland authorisation.
f) Six months date from the authorisation.
g) Balance of two-year period for the issue of Court Proceedings.
If we assume, for example, that John had an accident on the 1st of July 2008. John contacted his solicitor who made an application to Injuries Board Ireland, which was deemed received and complete on the 1st October 2008 (3 months after the date that the accident had occurred). The claim remained in the Injuries Board Ireland until the 1st of July 2009 when it was released by way of Authorisation. The limitation period starts to run again 6 months later on the 1st of April 2010. A further period of one year and nine months remains (3 months of the two-year limitation period already having expired before the Injuries Board Ireland application was lodged) and so the limitation period for John’s claim will expire on the 31st of December 2011 (being the day before 1st of January 2012; i.e., 1 year and 9 months from the 6 month period).
- Determining whether you have a personal injury claim for compensation may be a very complicated affair.
- In the first instance, personal injury claims must actually show that you have sustained an injury.
- Personal injury claims can only be made if somebody has been negligent in causing your injury.
- There are certain formalities which have to be followed with personal injury claims such as having a medical examination and obtaining accident reports.
- A solicitor will explain to you whether your personal injury claims are dealt with by the Injuries Board Ireland or must be pursued in court.
- He will also advise you whether your personal injury claims are at risk of being time-barred due to the Statute of Limitations.
- Therefore, it is always in your best interests to consult a specialised personal injury claims solicitor before making any type of personal injury claims.
It is important to note that each personal injury claim is unique. If you have been involved in an accident and feel that you have a potential personal injury claim you are advised to discuss all of the points raised in the preceding article with a solicitor at the earliest opportunity.
Copyright © 2009-2013 Eoin Campbell
About the Author
Eoin P. Campbell is an honours law graduate (LL.B) and qualified solicitor whose primary professional experience is in the area of litigation and in particular personal injury claims. Eoin P. Campbell is currently lecturing in law at two universities in Lyon, France.
Never rely on on this article or any other material you find about personal injury claims that you find on Web sites – always speak to a solicitor.