Do I Have a Worthwhile Personal Injury Claim?
One of the most frequently asked questions relating to personal injury claims in Ireland is “Do I have a worthwhile personal injury claim?” for although many people understand the concept of recovering personal injury compensation when they have suffered a loss, an injury or the avoidable deterioration of an existing condition due to somebody else´s negligence, it is often wondered whether the effort of making compensation claims for personal injuries is justified by the personal injury settlements they receive.
This article aims to answer the question as comprehensively as possible; however no two personal injury claims in Ireland are the same – even if the injuries that have been sustained are identical – and, if after reading this article you believe that you have a personal injury claim which is worth your while to pursue, it is advised that you speak with a personal injury solicitor at the first practical opportunity.
What Classifies as a Person Injury?
In order to pursue person injury claims in Ireland, you must have sustained a diagnosed injury or the deterioration of an existing condition due to the carelessness of somebody who had a responsibility for your wellbeing – both physical and emotional. You are also eligible for personal injury compensation if a family member or person on whom you were dependent has died in an accident for which they were not to blame.
In the majority of compensation claims for personal injuries in Ireland, accident victims will have attended a hospital or their doctor´s surgery as soon as possible after the accident occurred; however not all personal injuries manifest immediately, and if you have relied on first aid administered at the site of an accident – or attended to your injuries yourself after they have developed at home – you should seek professional medical treatment urgently to have your injuries recorded in your medical history.
Even if you have suffered the avoidable deterioration of an existing condition, it is important that your “injury” is recorded in your medical history. Injuries of this nature are more often due to the negligence or carelessness of medical practitioners and, if you fall into this category of personal injury, you may find our page on making a medical negligence claim of more relevance to you.
Establishing Somebody Else´s Negligence
The methods for establishing that somebody else is to blame for your injury are going to vary depending on the nature of the accident in which the injury was sustained, however collecting evidence that somebody else was at fault for causing you an injury is essential to ensure a successful conclusion to a personal injury claim – provided, of course, that you do not place yourself at risk of further injury.
Often, at the time an accident occurs, the negligent party might raise their hands and admit their liability, only for the acknowledgement of responsibility to be retracted once their insurance provider is involved. This can lead to complications with the processing of compensation claims for personal injuries and delays in receiving personal injury settlements; although there are ways in which somebody else´s negligence can be established after the event:-
- Police reports, roadside cameras and witness statements can all help to established negligence after injuries have been sustained in road traffic accidents,
- CCTV footage, witness statements and accident report books can all be put to good effect if used to support claims for slips, trips and falls compensation in places of public access, and
- The testimonies of work colleagues, accident report books and HSA inspections can all help to establish the negligence of an employer when you have been injured in an accident at work.
Quite often, you might not feel up to undertaking the procedures required to support a personal injury claim when you are still recovering from your injuries, and this is where the assistance of a personal injury solicitor can be invaluable – not only to assess whether you have a personal injury compensation claim which is worth your while to pursue, but because he or she will be able to produce the evidence – if it exists – to establish negligence in personal injury claims in Ireland.
The Injuries Board of Ireland
Most compensation claims for personal injuries in Ireland have to pass through the Injuries Board of Ireland (exceptions include medical negligence claims, professional negligence claims and some product liability claims). The Injuries Board was established in the Personal Injuries Assessment Board (PIAB) Act of 2003 to assess how much compensation should be awarded when plaintiffs have been injured and liability for their injuries is not contested.
The process works by plaintiffs submitting applications for assessment to the Injuries Board – stating who they are making a personal injury claim against, explaining how their accident happened (no proof of negligence is required) and accompanying the application with doctors´ forms detailing their injuries and any receipts for expenses the plaintiffs wish to recover (medical expenses, loss of income etc).
The Injuries Board contacts the negligent parties to get their consent to continue with the assessment (effectively getting a written admission of liability) and, once consent has been received, calculates how much compensation the plaintiffs are entitled to receive according to figures published in the Book of Quantum. If both the plaintiffs and the negligent parties agree with the Injuries Board´s assessments, personal injury settlements are paid as soon as an “Order to Pay” is issued by the Injuries Board.
Do I Need a Solicitor to make Personal Injury Claims in Ireland?
The short answer is “No” – or “not always” at least. The Injuries Board process was established to reduce the costs of making personal injuries claims in Ireland and providing personal injury settlements to the victims of negligence much quicker than could be managed by the courts. In both those respects the Injuries Board has achieved it goals; however, there are specific scenarios in which you might chose to use the services of a personal injury solicitor to ensure the following:-
- You effectively communicate your injuries and the effect they have had to your quality of life on the application for assessment to the Injuries Board.
- You receive fair and adequate assessment of personal injury compensation and repayment of the expenses or loss of income you have incurred.
- You avoid accepting inappropriate offers of personal injury settlements from the negligent party´s insurance company.
There are times when you cannot be without the services of a personal injury solicitor, and these include:-
- If you wish to represent your child, or somebody of diminished mental capacity, in a personal injury claim
- If the person named as the negligent party refuses to consent for an assessment to be conducted by the Injuries Board
- If you have contributed to the cause of your accident or the extent of your injuries by your own lack of care
These six scenarios are covered in the sections below and, even if you believe that none of them apply in your particular circumstances, it may still be worth your while discussing the circumstances of your accident and the nature of your injury with a personal injury solicitor.
How is Personal Injury Compensation Calculated?
We mentioned above about the Injuries Board calculating how much compensation a plaintiff would receive based on the Book of Quantum. This book is a publication which lists various injuries according to their severity and permanence, and assigns them a financial value.
Quite often these financial values omit to consider the impact an injury would have on individuals of different ages, sex and previous physical health; for example,
- A younger man losing a limb in an accident as opposed to a person of pensionable age who has less time to live with their disability
- A female plaintiff – rather than a male plaintiff – who has suffered a facial injury which leaves a permanent visible scar
- A person who no longer can enjoy their usual active pastimes in contrast to a 60-a-day smoker whose only physical activity is reaching for the remote control
The third example above brings us onto a factor which can often be overlooked in personal injury settlements – your loss of amenity. Your loss of amenity in compensation claims for personal injuries relates to everyday activities you are unable to do because of an incapacity caused by your injury. For a particular plaintiff who leads an active life, the loss of amenity due to a relatively minor whiplash injury could be more than for the afore-mentioned couch potato who loses a finger in a public liability accident.
You are entitled to claim compensation for a loss of amenity provided it can be shown that you are unable to perform tasks or activities that would normally form part of your pre-accident life. This can be established by photographs, social media postings, the testimony of friends or colleagues, and by other physical examples of achievements you have accomplished in your pastimes or hobbies.
You should also be able to claim personal injury compensation if you suffer an emotional trauma due to the nature of the accident in which you were injured – or even if you later suffer depression, anxiety or Post Traumatic Stress Disorder (PTSD) due to being immobile while you are recovering from your injuries. All psychological injuries have to be diagnosed by a medical professional in the same way as your physical injuries have to be proven before you can include them in a personal injury claim.
There are often more factors than those listed above that are taken into consideration when the value of personal injury settlements are calculated and, to ensure you receive the full amount of personal injury compensation to which you are entitled, it is always in your best interest to engage the services of a personal injury solicitor who has experience with personal injury claims in Ireland.
Insurance Companies and Third Party Capture
A substantial number of compensation claims for personal injuries in Ireland are resolved by negotiation long before the Injuries Board have concluded their assessments, and you could receive the same personal injury compensation (if not more) by allowing a personal injury solicitor to represent you in negotiations with the negligent party´s insurance company.
However, you should be wary of unsolicited approaches by insurance companies who make offers of personal injury settlements immediately they have been informed of their policyholder´s negligence. These offers usually favour the insurance company, and inasmuch as you may be desperate for a short-term influx of cash while you are unable to work and/or support your family, offers of personal injury settlements should always be referred to a personal injury solicitor.
Should your short-term finances be of concern to you, your solicitor may be able to apply for interim payments of personal injury compensation until such time as your personal injury claim is resolved. If, however, you inadvertently accept an offer of personal injury compensation form an insurance company which ultimately proves to be inadequate for your needs (know as third party capture), you cannot go back to the insurance company and ask for more.
Personal Injury Claims for Children
If your child has suffered in an injury in an accident for which they were not to blame, they have to be represented by a parent or guardian when making personal injury claims in Ireland. The alternative is to wait until your child reaches the age of eighteen – the age at which they are legally allowed to submit an application to the Injuries Board or instruct a solicitor – by which time it may be impossible to collect any evidence of negligence.
As a parent or guardian, you will have to apply to the District Court to act on your child´s behalf as a “next friend” and have to show that the personal injury claim is being made in the child´s best interest and that there is no conflict of interest – such as if you were driving carelessly and caused the accident in which your child sustained their injuries.
The process of making personal injury claims in Ireland then continues in the same way as if the claim was being pursued by an adult (with minor, technical exceptions) until a suitable settlement of personal injury compensation is agreed. Thereafter, personal injury settlements have to be approved by a court (for which you will need legal representation) before they are paid into court funds, where they are held in an interest-bearing account until your child reaches the age of eighteen.
Will Court Action Be Necessary?
In addition to appearing in court to conclude a personal injury claim for a child, there are three other scenarios in which court action may be necessary to resolve compensation claims for personal injuries in Ireland – when consent to assess a personal injury claim has been withheld, when one or both parties disagree with the assessment of personal injury compensation by the Injuries Board and when the nature of the personal injury claim falls outside of the remit of the Injuries Board.
Should either consent be withheld to assess a personal injury claim or there be a dispute over how much compensation the Injuries Board has assessed a personal injury claim for, the plaintiff will be issued with an “Authorisation” to pursue their claim through the courts. An Authorisation is necessary before any court action can be commenced, which is why personal injury solicitors recommend always submitting an application for assessment – even if negotiations with the negligent party´s insurers are well-advanced.
The third scenario concerns personal injury claims in Ireland which fall outside of the remit of the Injuries Board. As well as medical negligence and professional negligence claims, these can also be claims for personal injury compensation where no benchmark exists for the Injuries Board to assess a claim against (such as the recent DePuy Hip Replacement recall) or if a plaintiff has contributed to either the cause of the accident in which they were injured or the extent of their injuries through their own lack of care.
In compensation claims for personal injuries in which the plaintiff has been partly responsible for causing an accident due to their own lack of care or allowed their injuries to deteriorate by not seeking medical attention at the first possible moment, the plaintiff is considered to have contributed to the negligence which resulted in an injury.
In such cases it is likely that consent will be declined for the Injuries Board to assess an application and an Authorisation to pursue the personal injury claim through the courts will be issued. It is not always inevitable that compensation claims for personal injuries are resolved in court when contributory negligence is a factor, as often a percentage liability can be assigned to the plaintiff by agreement, and that percentage deducted from negotiated personal injury settlements.
The term “contributory negligence” can also be applied when more than one party – but not including yourself – is responsible for causing the accident in which you were injured. A typical scenario is when two or more driver have been driving recklessly and caused a road traffic accident in which you have sustained an injury. In this case, a percentage liability would be assigned to each of the negligent drivers, whose insurance companies would then pay the relevant proportion of personal injury compensation.
Further Issues Regarding Personal Injury Claims in Ireland
As extensive as this article is, there are many different accident and injury scenarios which have not been mentioned. The “absolute” duty of care (where an accident could not have been foreseen or prevented) introduces a grey area when discussing negligence – whereas the exact opposite applies when making a personal injury claim for an injury sustained on a plane or at sea (where the airline/cruise company accepts liability for injuries as a condition of carriage).
The “Statute of Limitations” time limit of two years, which applies to personal injury claims in Ireland from the “date of knowledge” on which you were aware that you had sustained an injury, is also a necessary factor to be aware of when making compensation claims for personal injuries – especially if your case is likely to be complicated or may revolve around injuries which may not become fully apparent for a considerable period of time.
There are also personal injury claims in Ireland which are made against uninsured persons or when the negligent party cannot be located, claims in which companies have gone out of business after being responsible for causing a work-related health condition, the different procedures which need to be followed in compensation claims following a food poisoning injury and how to make a claim against an employer without jeopardising your work relationships.
Please Speak with a Solicitor
Because of the many different accident and injury scenarios, it is very important that you speak with a solicitor at the first practical opportunity – even if it is just to find out whether you have a worthwhile personal injury claim. A personal injury will not charge you for his or her time when you first speak with them, and will provide you with the information that you need to decide for yourself whether you have a claim for personal injury compensation which it is worth your while to pursue.
- In order to be eligible for personal injury compensation, you must have suffered a loss, an injury or the avoidable deterioration of an existing condition due to the negligence of somebody who owed you a “duty of care”
- No two personal injury claims in Ireland are the same – even if the injuries sustained are identical. Factors such your age, sex, previous lifestyle and how your injury affects your quality of life can determine how much compensation you are entitled to.
- In most cases, you would make an application for assessment to the Injuries Board when you commence your personal injury claim. Thereafter, it may be possible to resolve your claim by negotiation although, if a settlement cannot be agreed upon, court action may be necessary.
- Unsolicited personal injury settlements are sometimes offered by insurance companies on behalf of their negligent policyholders. For your own financial security, these should always be referred to a solicitor.
- Please speak with a personal injury solicitor as soon as you can – even if you have already submitted your application to the Injuries Board or received an assessment of your claim from them. The information provided by a solicitor could still save you time and money.
- Determining whether you have a personal injury claim for compensation which is worth your while to pursue is your decision.
Copyright © 2009-2018 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.