Compensation system biased against injured parties

Pat Mustard

I suppose that there is nothing particularly new in this subject, but it was in the newspaper this morning, so I thought that it might interest some people.

There was an article with a piece by John McCarthy, Solicitor, and another piece by Stephen Watkins, director of Corporate Services, Injuries Board.

There was also another article which summarised the two positions, here:
http://www.irishexaminer.com/archives/2014/0424/ireland/personal-injuries-system-has-quotfundamental-flawsquot-claims-solicitor-266338.html

McCarthy's first point was about time not being put on hold as against parties who are unnamed in the application to the Injuries Board, and this causing difficulties for unrepresented claimants.

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

McCarthy also criticised the fact that insurance companies can agree to an assessment, but if matters proceed to court, the insurance company can turn around and contest liability.

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.

I suppose that there is also the issue that if a respondent/defendant accepts an Injuries Board assessment, if the claimant/plaintiff does not accept it and proceeds to court, if he does not beat the amount of that assessment, an award of legal costs will not be made in his favour, and he may also have to pay all or a portion of the defendant's costs.

That could wipe out an award against an otherwise successful plaintiff.

Surely this should be a significant deterrent for many plaintiffs, rather than unbalancing the entire system in favour of insurance companies/defendants by also allowing them turn around and contest proceedings where they had previously agreed to an assessment.

The insurance company can agree to assessment and the claimant is in trouble if he can't beat that figure in court, but, at the same time, the insurance company can completely change direction and contest the proceedings fully.

Ten years on, and the insurance companies have the system stacked every way in their favour.

Pro Hoc Vice

The Mustard wrote: »

I suppose that there is nothing particularly new in this subject, but it was in the newspaper this morning, so I thought that it might interest some people.

There was an article with a piece by John McCarthy, Solicitor, and another piece by Stephen Watkins, director of Corporate Services, Injuries Board.

There was also another article which summarised the two positions, here:
http://www.irishexaminer.com/archives/2014/0424/ireland/personal-injuries-system-has-quotfundamental-flawsquot-claims-solicitor-266338.html

McCarthy's first point was about time not being put on hold as against parties who are unnamed in the application to the Injuries Board, and this causing difficulties for unrepresented claimants.


McCarthy also criticised the fact that insurance companies can agree to an assessment, but if matters proceed to court, the insurance company can turn around and contest liability.


I suppose that there is also the issue that if a respondent/defendant accepts an Injuries Board assessment, if the claimant/plaintiff does not accept it and proceeds to court, if he does not beat the amount of that assessment, an award of legal costs will not be made in his favour, and he may also have to pay all or a portion of the defendant's costs.

That could wipe out an award against an otherwise successful plaintiff.

Surely this should be a significant deterrent for many plaintiffs, rather than unbalancing the entire system in favour of insurance companies/defendants by also allowing them turn around and contest proceedings where they had previously agreed to an assessment.

The insurance company can agree to assessment and the claimant is in trouble if he can't beat that figure in court, but, at the same time, the insurance company can completely change direction and contest the proceedings fully.

Ten years on, and the insurance companies have the system stacked every way in their favour.

Farrell deals either the first issue http://courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/bd36c343f8e1fc8480257c9700383057?OpenDocument

In relation to liability, while the article is correct, there is nothing stopping a defendant entering into talks accepting liability for that purpose and the if no settlement then row back.

And in the award acting as a tender, can cause issues, again nothing to stop any Defendant insurance company throwing in a Tedder early on in any case.

My opinion the biggest issue facing PI is RECOVERY OF CERTAIN BENEFITS AND ASSISTANCE as contained in the social Welfare and Pensions Act 2013. http://www.irishstatutebook.ie/pdf/2013/en.act.2013.0038.pdf

In effect this now requires any Defendant, in a case where SW payments have been made, to get a certificate of such payments and if a matter is settled to pay on top of any settlement figure the amount due to SW. If there is any issue on contributory negligence that matter will have to be ruled by a judge even if both plaintiff and defendant agree say its 50/50. So person A has crash, he is out of work gets €10,000 in SW. It's agreed to settle the matter on 50/50 basis and injury valued at 50,000 but plaintiff will get 25,000. The insurance company will also have to pay 10,000 to SW ANC then bring the matter to a judge to rule that it was 50/50 and then get a refund of 5,000, is my understanding.

McCrack

I'd make the point that the cost implications introduced by PIAB amendment Act are discretionary on a Court and indeed I have never had a situation where a settlement or award has been less than what the Injuries Board assess the injuries at.

A good solicitor will know how to play the game tactically with PIAB so as to get the full value of their clients injuries and protect their interests. The full value is gotten through the court process.

Bottom line is to avoid getting shafted by the Injuries Board process which is too closely aligned to the insurance industry, injured people need to be represented professionally by a solicitor.