Wheel of Fortune: Personal Injuries Assessment Board

The Personal Injuries Assessment Board was established over a decade ago, but is it fully meeting the needs of all claimants? Two experts debate the board’s merits and effectiveness.

NO: John McCarthy

THE Personal Injuries Assessment Board (PIAB) has been around for over 10 years and clearly it’s here to stay. Any balanced appraisal would have to conclude that its introduction has done away with certain practices that unjustly enriched lawyers contrary to the common good. It would be difficult to justify the amount of legal fees that were previously being paid out for relatively minor injuries where liability wasn’t disputed.

The PIAB and the legal profession will never see eye to eye on the principle of the right of claimants to recover their legal costs.

But if, for the sake of argument, one were momentarily to concede that it was just and equitable that innocent claimants (rather than highly profitable insurance companies) should bear the expense of the professional representation necessary to ensure that accident victims secure the compensation to which they are entitled, what measures could be taken to remove some of the many traps and pitfalls that beset claimants in the PIAB process?

While many changes would be needed to make the current system truly fair, limited space dictates that only two of the most fundamental flaws can be afforded attention in this article.

As the system currently operates, if you make an application to the Injuries Board naming one or more parties the statute of limitations is put on hold only against those individuals who have been named by you.

If claimants submit an application without the benefit of legal assistance they may fail to name the correct legal entity who is liable to compensate them, or they may completely omit additional parties who should be included.

Time is not placed on hold against any such wrongly identified or unnamed parties, meaning that if the error is only identified by a solicitor after the Injuries Board issues an authorisation to commence court proceedings, the limitation period may well have expired as against those parties who were not properly named purely as a consequence of a claimant’s lack of legal know-how.

For this reason the law should be changed to provide that if a claimant submits an application to the Injuries Board time should be placed on hold against all potential parties.

This would at least mean that a claimant’s solicitor could rescue the situation at the point when it became clear that the claim would not be concluded within the process, meaning that court proceedings were necessary.

If an accident victim claims against someone under the assessment process, and that respondent in turn agrees to have the matter assessed by the board, this is on the understanding that liability for the obligation to compensate the injured claimant is not being contested. However, as matters stand, a respondent can agree to have the matter assessed by the Injuries Board, wait for the board to issue an assessment, turn around and reject the assessment, deny liability outright, and call on the accident victim to prove their case in full.

At this stage several months or years may have elapsed since the accident occurred. The hapless accident victim, who in good faith entered into the Injuries Board assessment process on foot of assurances that it was completely non-adversarial in nature, will almost certainly not have had the wherewithal to ensure that vital evidence that would be necessary to prove their case was preserved on a precautionary basis.

Instead they will find themselves trying to piece together whatever remaining proof they can to satisfy a court that the respondent was at fault for their injuries. In this way a case that would have succeeded had legal representation been retained at the outset may have become irredeemably unwinnable.

For this reason the law should be amended to provide that any respondent who agrees to a claim being assessed by the Injuries Board should not be allowed to deny liability in any subsequent court proceedings that are issued.

Any solicitor who represents accident victims will list off a whole host of other changes that would be needed before it could truly be considered to be fair. But if the reforms referred to above were implemented as a first step, this might see the beginning of a process where both the Injuries Board and the legal profession could have faith in a system which delivered justice to accident victims and society at large.

John McCarthy is a solicitor specialising in personal injury claims and the author of Make Your Claim: A Consumer’s Guide to the Injuries Board — www.makeyourclaim.ie

YES: Stephen Watkins

THE Personal Injuries Assessment Board was set up a decade ago to assess compensation awards without the need for costly litigation. It was one of a number of government initiatives progressed to tackle soaring insurance premiums.

At the time, the average motor insurance premium in Ireland was twice that of the UK. Since the board’s establishment, the cost of motor insurance has reduced by 40% and it is currently half the UK rate. This transformation was made possible by €1bn in savings, with no impact on the compensation amount paid to injured parties.

The merits of the PIAB’s non-adversarial model are evident; lower insurance costs, increased competitiveness, and a dramatic freeing up of the courts. By law, personal injuries claims must be submitted to the injuries board — a non-legal process where claimants can submit applications directly for a refundable fee. Information provided during the process includes a straightforward application form with the basic facts of the case, and a medical report.

So how have claimants fared?

- Claims that took three years through litigation are typically resolved in seven months without the stress and costs of litigation or a court appearance.

- Award values are the same as the courts and the Injuries Board continuously monitors court awards to ensure consistency.

- A recent customer satisfaction survey, (January 2014), found that 97% of those surveyed felt that the person they dealt with (within the Injuries Board process) gave a clear understanding of the process and what was required to move matters forward.

- A claimant who makes an application to the board pays a fee of just €45 which is repaid after an award is made. Costs that are deemed necessary to a claim are recoverable and the board’s assessors and service centre staff will advise claimants in this regard. If a claimant decides to use the services of a solicitor, they are likely to have to pay for this, themselves. Claims can however, be made directly by claimants.

- The board’s service centre is contactable from 8am to 8pm, Monday to Friday. The board also provides a user-friendly website and a mobile app for information on the move.

- The claimant and respondent are protected given that either can reject the award. Claimants have 28 days to consider whether or not to accept an award, respondents have 21 days.

- Most cases involve accidents with no legal or liability issues. In certain circumstances, the services of a solicitor may be required to ensure that the claim is made against the correct party, the claimant will be advised to take legal advice (on that specific aspect of the claim) and that reasonable cost will form part of any award.

Notwithstanding this progress, it is clear that monies saved in lower premiums have come at the expense of vested interests who made a great deal of money from litigation. Some predicted that the board would cost €30m to set up and that it would drive claims and increase insurance premiums. Instead, it is fully self-financing and delivers savings of over €100m each year. These savings are the result of administrative efficiency and the avoidance of unnecessary litigation.

A typical compensation claim of €20,000, assessed by the board, attracts delivery costs of about €1,500. If this case required finalisation in litigation, the costs would increase significantly to over €11,000 for the same compensation amount. The more cases that can be dealt with through the board’s low-cost model, the greater the benefit for insurance policyholders.

Today, many solicitors will privately concede the board’s positive contribution. However, many solicitors and other intermediaries highlight why they believe claimants should also avail of their services. The board’s view on this is simple. This is not a legal process, there are no oral hearings, and claims can be submitted directly. Assessment of compensation is based on the medical evidence provided as well as details of financial loss such as treatment costs and loss of earnings.

In a small portion of claims, a modest level of legal input may be necessary — where that occurs, the board will signal it at the time and any costs reasonably and necessarily incurred will form part of any final award.

The support of a solicitor, which in the majority of cases is not necessary, is a matter of personal choice which comes at a cost. It is always up to individual consumers to weigh up the pros and cons of dealing with intermediaries such as brokers, travel agents etc. and we would advise intending claimants to carry out some basic research to avoid committing to a service and cost they might not need.

Stephen Watkins is director of corporate services at PIAB. www.injuriesboard.ie


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