Injuries act open to challenge

The Personal Injuries Assessment Board (PIAB) last week announced that 11 per cent of its 2,860 public liability awards – totalling €65.4 million in the two years to the end of 2008 – went to claimants under the age of 18.

Two-thirds of those claims were for slips, trips and falls. More than a quarter of the accidents happened in public places, while just under a quarter occurred in shops and only 4 per cent happened in schools or health facilities. The average award was €22,865.

All personal injuries claims are now lodged with PIAB, and no case can go on to trial without an authorisation from it. (It now calls itself Injuries board.

ie, but the name given by statute has never been legally changed.) PIAB can deal with cases only where there is no dispute about liability.

It considers the claim and assesses what damages should be paid to the claimant. If the assessment is accepted, the money is paid over and it ends there. If the assessment is rejected or if there is a dispute on liability, PIAB must give an authorisation for the claim to go to trial.

In the early days of this procedure, insurance companies and others said that claimants were rejecting PIAB assessments because the claimants felt they would get more money in court. There was some evidence – and at least one judgment – that claimants were indeed winning bigger damages in court.

PIAB is supposed to award the same amount to claimants as the courts would, so, if assessments were being rejected because people got more in court, that could only mean PIAB was awarding less – in other words, not doing its job. The fault lay with PIAB.

But the 2007 Personal Injuries Assessment Board (Amendment) Act – which the Dáil enacted so quickly, it almost seemed to be an emergency – says that if a claimant rejects a PIAB assessment and doesn’t win higher damages in court, the court cannot award any legal costs to that claimant.

The idea is, simply, to scare claimants into accepting assessments by waving the stick of legal costs at them.

Initially this seemed like a good idea. After all, who wants to see a chancer rewarded for putting a business through the hoops? But once examined, it turns out to be based on very shaky thinking – so shaky, in fact, that it may not stand up at all.

The biggest problem is with claimants under the age of 18.Under an older act, any offer or assessment in a child’s claim must be approved by a judge before it can be accepted. For example, two children suffer the same injuries in the same car accident.

PIAB makes the same assessment for each, based on one medical view. This assessment is put before a judge for approval. The prognosis is less rosy than PIAB thought, the judge rejects it and the case has to go to trial.

In court 18months later, one child has recovered better than forecast, one worse. A different judge awards less than the assessment to the first child, more to the second. In such a case, the act says no costs can be given to that child, in a case where the defendant has admitted doing wrong.

Yet the law says children can’t be penalised if a judge rejects an offer. So, which act applies? Children are, in effect, in the worst position of all claimants, in a legal Catch-22 for which they end up paying. Other statutes which put a child at a disadvantage compared with other litigants have been ruled unconstitutional.

No other litigants end up in this Catch-22, only children. The 2007 act will be challenged as a result; the only question is when.