| Legal Advice | | | Ralph McMahon is The Principal in Ralph McMahon Solicitors and has been acting on behalf of Spinal Injuries Ireland and its members since its foundation in 1993.
Spinal Injuries Ireland are delighted to recommend and endorse Ralph to our members for any legal advice that you may require.
His contact details are:
Ralph McMahon Solicitors, Suite 319, The Capel Buildings, Mary's Abbey, Dublin 7.
Telephone: 01-889 8580
Fax: 01 889 8584
Email: ralph.mcmahon@rmcm.ie
| | Web: www.rmcm.ie | | | If you or a person close to you has suffered a spinal injury, you may wish to seek sound legal advice. Cases involving spinal cord injuries are complex and require a solicitor’s skill and understanding to guide you through the process of litigation.
Here is some simple advice if you are thinking of consulting a solicitor.
| | | | Should I seek legal advice? | | | If you have suffered a spinal cord injury, you may be entitled to compensation. It is important to remember that often, compensation is available in situations where it would seem that there is no case for example, where a person is involved in a hit and run road traffic accident or the victim of a violent assault whether or not the assailant has been apprehended.
If you are unsure whether or not you can bring a claim for compensation, seeking advice from a solicitor will, at the very least, reassure you about your legal rights. | | | | Can I claim compensation for my injuries? | | | In most cases, it is necessary to show that someone else was at least partly at fault for your injuries even if it could be argued that you were also partly responsible.
The onus lies on a claimant to show that the person they say was at fault owed them a duty of care and that they were negligent in some way resulting in the claimant’s injuries.
It is worth taking legal advice before you decide whether or not to pursue a claim.
| | | | How long do I have to bring a claim? | | | The time limits for bringing claims have recently been changed. If you had an accident after 31st of March 2005, you have two years from the date of the accident to bring a claim.
Since the introduction of the Personal Injuries Assessment Board and other legislation, the time limits in making a claim have become complicated. This legislation has also brought in a requirement that a claimant must write a letter of claim to the person who is to be held responsible within a certain time or as soon as practicable thereafter.
Different time limits apply for those who are under 18 years of age when they suffer their injury or for those who can apply to the Criminal Injuries Compensation Tribunal because they were the victim of an assault.
If you are thinking of taking legal advice, you should do so immediately to make sure you are not running out of time to bring a claim.
| | | | What compensation can I claim? | | | If you bring a claim and are successful, you will be awarded compensation.
Compensation is awarded under a number of different headings which include damages for your pain and suffering, for your financial losses from the date of the accident (e.g loss of earnings, medical expenses), and your ongoing expenses into the future.
Damages for future losses are the most complicated and require the input of various experts. Such losses can include loss of earnings into the future, ongoing nursing care, the cost of special aids and equipment including their maintenance and replacement in the future.
It is important that you keep a note of all expenses that you have incurred and keep the receipts if you intend to bring a claim.
| | | | What next? | | | If you have any concerns of a legal nature which you would like to discuss or if you require legal advice, you can call Ralph McMahon, Solicitor and he will arrange to meet with you.
Ralph McMahon Solicitors are endorsed by Spinal Injuries Ireland to act on behalf of its members and also represents the Association itself.
Ralph McMahon Solicitors, Suite 130 The Capel Building, Mary’s Abbey, Dublin 7
Ph: 01 – 889 8580 Mobile: 087 285 4007 | | Email: ralph.mcmahon@rmcm.ie | | | | The Personal Injuries Assessment Board | | | | An Overview | | | In 2003, The Personal Injuries Assessment Board Act (“the PIAB Act”) was enacted into law. As and from July 2004 the PIAB Act is fully in operation.
Pursuant to this piece of legislation the Personal Injuries Assessment Board was set up.
The Personal Injuries Assessment Board is an independent body set up in response to serious lobbying by insurance companies and business owners. The insurance companies were lobbying to reduce legal costs associated with claims for personal injuries. Business owners were lobbying it because of the huge increase in insurance premia levied by the insurance companies.
If you have been injured in an accident you may be entitled to sue for compensation. Being injured in an accident does not automatically qualify an injured party for compensation. To qualify you must show that the Defendant owed you a legal duty of care, that they were negligent and that as a result of that negligence the injuries were caused. The onus lies on the Plaintiff to establish these matters.
Pre-PIAB:
Before the coming into operation of the PIAB Act, an individual who had suffered personal injuries would instruct a Solicitor to issue proceedings for the personal injuries sustained in an accident. Proceedings would be issued (depending the potential size of the claim) in either the District, Circuit or High Court. A successful Plaintiff would be awarded the majority of these costs, if not all of the costs, associated with the prosecution of the claim by the Solicitor in any of the aforementioned Courts. The Defendant would be ordered to pay the costs of the successful claimant. In the normal course, and provided there was an insurance company dealing with the claim on behalf of the Defendant, the Insurance company would underwrite and discharge these costs.
Post-PIAB:
Since the coming into operation of the PIAB Act the position has changed (save for injuries caused by medical negligence which continue to be dealt with in the traditional formula).
Other than medical negligence claims the procedure for processing a claim for personal injuries through the Personal Injuries Assessment Board is as follows:
1. A medical report should be secured from the claimant’s Doctor and this report should take the required format of the template prescribed by PIAB.
2. A completed application form (in the prescribed format) should be prepared.
3. The application form and medical report must be submitted to the Personal Injuries Assessment Board. Also included should be copies of any correspondence between the claimant (the injured party) and the Respondent (the person or entity from whom compensation is being sought). Receipts, vouchers or other documentary proof in respect of any other financial loss incurred by the claimant should also be included, together with any other relevant documentation and also a payment of €50.00 payable to PIAB by cheque, postal order, credit or laser card.
After the submission of a claimant’s application to PIAB the following is what occurs:
a. If the application form and related documents are considered by PIAB to be complete, PIAB will assign an application number and write to the claimant stating that the application is complete and has been registered. If not, PIAB will require such further information and/or documents as it considers necessary to complete the application.
b. When the application has been received by PIAB, PIAB will notify the Respondent when a claim has been made and the Respondent will then have 90 days within which to consent to an assessment of the claim by PIAB.
c. A Respondent in consenting to an assessment of damages by PIAB can only consent on the basis that PIAB is entitled to assess damages while assuming full liability towards the claimant having regard to PIAB’s Book of Quantum (this is available on the PIAB website). In so consenting each PIAB participating Respondent must pay a processing fee of €850.00 and an additional fee of €150.00 towards the costs of the claimant’s medical report. It should be noted that consent by a Respondent to an assessment does not constitute an admission of liability by the Respondent and if ultimately an assessment is not accepted by the claimant or is rejected by the Respondent and Court proceedings are subsequently issued following the issue of a PIAB authorisation it would then be open to a Respondent dispute liability in the defence to such proceedings.
d. In the event of an assessment proceeding, PIAB may seek additional information relevant to the assessment of the claim from the claimant and may seek information from third parties, including the Revenue Commissioners. PIAB may request the claimant to submit himself or herself to an independent examination by a Doctor on its medical panel.
e. PIAB must notify the claimant and the Respondent in writing of its assessment of the claim within a period of nine months after receiving the Respondent’s consent to such assessment but this period may be extended by PIAB before the end of the nine months by an additional period of six months. If PIAB fails to make an assessment of the claim within fifteen months after receiving the Respondent’s consent to an assessment PIAB must issue an authorisation to enable the claimant to issue Court proceedings.
f. The claimant has 28 days after being notified by PIAB of its assessment of damages to accept in writing the assessment. If the claimant fails to do so within that 28 days the claimant will be deemed to have rejected it.
g. Each Respondent has 21 days within which to reject in writing the assessment and if the Respondent fails to do so within that 21 days such Respondent will be deemed to have accepted it. If both the claimant and the Respondent accept or be deemed to have accepted the assessment PIAB will issue an “Order to Pay” to such Respondent/Respondents requiring such Respondent/Respondents to pay the claimant the damages assessed as being due.
h. If the claimant or Respondent rejects or be deemed to reject the assessment PIAB will issue to the claimant a written authorisation which will then enable the claimant to issue Court proceedings against all or any of the Respondents. The claim will then proceed through the Courts in the traditional way.
i. In the event that Court proceedings are subsequently issued by the claimant it will be open to any Defendant to put liability in issue in the defence of such proceedings. It should be noted that Court proceedings do not constitute an Appeal from PIAB’s assessment but rather a fresh examination of the claim. In the event the matter proceeds to Court and the Court either dismisses the claim or makes an award less than the assessment which PIAB arrived at the claimant will be exposed to the costs of the Respondent.
So what has changed?
It is likely that most claimants who have suffered injuries in circumstances to which the PIAB Act applies will continue to opt to instruct Solicitors to assist them in making an Application to PIAB. If there is an assessment of damages by PIAB which is accepted by both the claimant and the Respondent there is no provision under the PIAB Act for the claimant’s legal costs to be paid in addition to the damages (save in limited circumstances) and therefore the claimant will be directly responsible for his or her own Solicitors’ fees and outlays in these circumstances. It is clear, of course, that the aim of PIAB is to process as many claims as possible and therefore reduce the associated legal costs that have traditionally been paid in addition to the compensation that has been paid to the claimant.
Ultimately, therefore, if assessments are made by PIAB which both the claimant and the Respondent accept the claimant will have to discharge his or her own legal costs out of any award. It would be a matter for the claimant to agree with the Solicitor as to the basis of his charging and this should be done as soon as possible.
Impact on claimants who have suffered severe spinal injuries:
It is my view, and I think it fair to say that of the legal professional across the board, that individuals who suffer severe spinal injuries will not be prejudiced by the introduction of the Personal Injuries Assessment Board.
Undoubtedly it is the case that any claim for what is known in the legal business as catastrophic injuries will have to be initially dealt with through the offices of PIAB.
There are at least two reasons as to why, in my view, PIAB may have a difficulty in assessing damages for an individual who has suffered a spinal cord injury and why PIAB is therefore more likely to issue an authorisation to such a claimant to allow him or her proceed to Court in the traditional fashion.
I. The first reason is that it is rare in cases of this magnitude for any Respondent/Defendant to concede liability. As I have indicated above if a Respondent consents to PIAB assessing damages he can only do so while assuming full liability towards the claimant having regard to PIAB’s Book of Quantum. In the majority of cases brought where claimants have suffered severe spinal injuries it may be a tactical advantage to a Defendant to leave liability in issue so that from a negotiation point of view their position is maximised.
II. Secondly there is the question of the time period that PIAB have to deal with any claim. As we have seen they have a period of nine months after receiving the Respondent’s consent to an assessment within which to make an award although as we have also seen this period may be extended by PIAB before the end of the nine month period by an additional six months. If they fail to make an assessment of the claim within fifteen months after receiving the Respondent’s consent to an assessment PIAB must issue an authorisation to enable the claimant issue Court proceedings. It is the writer’s view that a fifteen month time frame is usually, if not always, an insufficient amount of time for a proper and full valuation to be put on a claim being brought by somebody who has suffered severe spinal injury. Clearly such a claimant needs a substantial period of rehabilitation (spending 12 months as an in-patient in the National Rehabilitation Hospital is not unusual). The impact on his or her future earning potential also has to be carefully considered, monitored and assessed. It is submitted that a fifteen month time frame is an insufficient period for an assessment to be professionally carried out. It should be noted that this assessment is carried out in conjunction with a number of specialists who would be briefed on behalf of the claimant by the Solicitor. The reports prepared by these specialists may also be impacted upon by the medical condition which of itself requires the necessity of the taking up of further medical reports.
The Book of Quantum which appears on the Personal Injuries Assessment Board website (www.piab.ie) records the following as being a guide to compensation that individuals who suffer spinal cord injuries should receive. It reads as follows:
"Spinal cord injuries":
A. Quadriplegia is paralysis of all four limbs which paraplegia being paralysis of both lower limbs and partial or total loss of urinary and bowel function, due to spinal cord disease or injury.
B. The Courts set the maximum compensation with exact value being based on a number of considerations:
i. Level of movement;
ii. Level of pain and suffering;
iii. Depression;
iv. Level of achievable rehabilitation;
v. Age and life expectancy.
Quadriplegia - up to €300,000.00;
Paraplegia - up to €300,000.00.”
While these sums may appear modest they are not totally disproportionate to the compensation which is payable by the Courts for pain and suffering (€400,000.00 would be more in keeping with what the Courts will allow for compensation for pain and suffering for severe spinal injuries). Money that is paid for pain and suffering is known as general damages. The substantial aspect of any claim for a claimant who has suffered spinal injuries falls under ‘out of pocket expenses’ or what is known in the legal business as special damages. These would include the following:
1. Loss of earnings;
2. Medical bills to date of assessment/hearing and into the future;
3. Nursing care to date of assessment/hearing and into the future;
4. Housing requirements/home improvement requirements;
5. Aids and appliances to date of assessment and into the future;
6. Physiotherapy to date of assessment/hearing and into the future.
(This is not an exhaustive list.)
While PIAB do have the power to make an award for both general damages and special damages the argument remains that there is insufficient time available to them to make this award.
In summary, therefore, while PIAB will undoubtedly be successful in removing a significant amount of claims from the Courts system the likelihood is that individuals who are claiming for severe spinal injuries will ultimately be issued authorisations from PIAB to allow their case proceed to Court in the traditional fashion. In this eventuality any successful claimant will be awarded his or her costs or at least the bulk of them.
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