Farmers, labourers and contractors may wish to bring a personal injury claim if they are involved in an accident and farmers may hold public and employers liability insurance which would cover them in the event of an accident involving personal injury occurring on their farm. This is very topical and there has been much discussion lately on “compensation culture” in the news following on from the Maria Bailey scandal. The main topic of discussion is as to whether “large” awards for damages correlate with an increase in insurance premiums for businesses and motorists. There appears to be no conclusive evidence that premiums are higher because of damages awards but it has been accepted by all parties who have a potential interest here including the insurance, legal, retail and business sector and the government that some sort of reform is required.
A report was obtained by the Personal Injury Commission (PIC) in 2018 to look into such reforms. The main recommendations of the report were as follows:
1. That a Judicial Council should be established to compile guidelines for appropriate general damages for various types of personal injury.
2. The Judicial Council Bill should be passed though the Houses of the Oireachtas as a matter of urgency to put Council on a legislative footing and enable the Council to be set up. The Bill has not been passed as law as of yet.
3. The Law Reform Commission needs to provide an analysis as to whether damages can be capped and whether legislation which is constitutional can be put in place in this respect.
4. That a “care not cash” system of compensation is not compatible with EU law but the report does recommend timely and effective treatment and the possible development of best practice standard treatment plans.
5. No offers in settlement should be made by insurers until a medical report has been obtained.
6. Prompt notification should be made in respect of claims.
7. There should be cooperation between the insurance industry and the Gardai in relation to insurance fraud investigation and a body should be set up to deal with this.
8. The insurance industry should invest in suitable trained personnel and technology in order to combat fraud or fraudulent claims.
9. A national medical research study on whiplash or soft tissue injuries should be carried out.
Under the present system, all personal injury cases have to first go through the Personal Injuries Assessment Board before they can proceed to a court case. The Personal Injuries Board can make an assessment for damages which can be accepted or rejected by the parties. If it is accepted the matter is then finalised. The awards under PIAB or if the matter proceeds to a court hearing are based on two types of damages. The first is general damages which are damages for pain, suffering and loss. The second are quantified damages such as loss of earning and medical expenses arising out of the accident known as special damages. General damages are not quantified and they normally depend on the nature of the injury, the severity and the prognosis in respect of the recovery period. This is based on the medical evidence which is obtained in respect of the case. The Personal Injuries Assessment Board does provide guidelines in respect of such damages with the Book of Quantum. The reforms above are suggesting that a Judicial Council should be established to compile further guidelines.
There is a perception that damages and solicitors costs are too high and there is suggestion that damages should be capped at a certain level. This could potentially be contrary to the principles of justice and the Judges or Judiciary should have discretion to decide the level of damages rather than this been specifically legislated for. The doctrine of Separation of Powers under the Irish Constitution provides that the Executive (government), Legislature (Parliament) and the Judiciary (judges) should have checks in place to operate independently. The function of the Judiciary is to interpret the law which would include the law in respect of Damages. Each personal injury or any case for any type of damages will vary slightly depending on the circumstances and in the interests of justice it would be preferable for it to be the responsibility of the Judiciary to provide guidance here in respect of the law. The new suggested reforms are in line with these principles and the Law Reform Commission is looking into the constitutionality of capping damages.
In respect of solicitor’s costs, solicitors do not receive any costs from the Personal Injuries Board and their costs have to be paid directly from their client in respect of applications made by solicitors. Solicitors are entitled to costs in respect of court proceedings. This again is at the discretion of the Judge as to whether costs will be awarded but they normally are if damages are awarded. If the case is unsuccessful, the defence may be awarded costs. If there is a costs order, the costs are normally subject to negotiation and if the parties are not in agreement, they are entitled to refer the costs to the taxing master which is in the process of been renamed the Office of the Legal Costs Adjudicator. This is an independent body which makes findings in respect of the level of costs to be awarded which is binding on the parties.
A person who suffers personal injury person and the person or organisation who the claim is made against are entitled to legal representation. Solicitors have the appropriate expertise here and should be consulted in the event of personal injury occurring.
Karen Walsh, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200. Walsh & Partners specialises in personal injury claims, conveyancing, probate and litigation.
Disclaimer: While every care is taken to ensure accuracy of information contained in this article, solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.