Personal injuries/piab - War story from the front lines and some hard learned advice

I've debated writing this for quite some time and finally I've convinced myself to do it. NOTE: this does not constitute legal advice or recommendations, more me returning karma to the pool considering much of this has been cobbled together from advice, experience and chats from others.

This is basically the lessons learned after I had a motorbike accident a few years back the how I found the personal injuries process/dealing with insurance companies/hopefully some very useful nuggets of information etc. I'll warn you know, there is quite a bit here from start to finish.


SOME KEY PIECES OF ADVICE I'D RECOMMEND 100%
1) KEEP A DIARY - Someone recommended this to me and I wouldn't be the diary writing type but nevertheless I just kept an electronic copy (in notepad/wordpad) and updated every couple of days. If I had a medical appt I'd pop something in. If I was in particularly bad pain/up/down I'd pop something in... impacts in my personal life etc. In the short term it was largely useless. In the long term when it finally came to negotiating time, drafting papers, medico legal reports it WAS ABSOLUTELY INVALUABLE! As months, and often years pass, you will forget the impact your injuries have had on your life, the events your injuries have impacted/ruined, your mindset the suffering you had gone through, the number of medical appointments, names of consultants who had said what, what specialists treated what etc. When the time comes for negotiating etc. it is very helpful to get you into the right mindset.

2) PATIENCE - I've seen posts asking if claims can be settled in days/weeks... the short answer is, it depends. Sometimes and insurance company is happy to settle early. Just ask yourself the question, "When was the last time you saw generosity/empathy/compassion on a claims handlers job specification. Don't fool yourself, the objective of any insurance company is to get out of each and every claim as cheaply as possible. Bear this in mind in your situation. Balance it with risk etc.

3) HEALTH IS YOUR PRIORITY - DO NOT RUSH TO SETTLE YOUR CLAIM IF YOU HAVE SYMPTOMS/INJURIES WHERE YOU DON'T HAVE ABSOLUTE CLARITY ON. This is one I had to be careful with myself. I was naive with the medical profession and the legal profession at the outset, I've probably learned a lot more than I'd ever wanted to know.... I'm sure I've only scratched the surface. In my situation I still had symptoms ongoing.... one medical professional (Snr Consultant) who wrote a medico legal report (4/5 months after accident) believed that one of my injuries would be 100% healed inside 6 months. 18 months later I was in surgery twice & out of work for another 3 monnths to resolve that very same problem and have life long issues with it. So just be careful. It was actually a THIRD opinion before I found a medical professional who was in a position to improve my situation. Don't be afraid to get a second opinion.

4) IMO THE PROCESS IS DEEPLY UNFAIR TO THE INJURED PARTY/NOT IN THE WRONG - this is my own opinion from what I have experienced and you'll see how it's formed if you read on. Too often the other party drives away, pays a few extra €€€ in insurance and has no pain/suffering/stress/etc. and largely forgets about it and has a grumble at insurance renewal time.

5) ANYTHING SAID VERBALLY ISN'T WORTH THE PAPER IT'S WRITTEN ON - I learned this on two counts. My solicitor had been communicating with the claims handled and the claims handler was openly communicating to my solicitor that liability was not an issue, they never put this in writing... despite being requested. When push comes to shove they tried to defend the case to the 11th hour. I've also heard of cases where liability is verbally accepted but retracted later on.

6) DO YOUR RESEARCH - If you're reading this then well done, you're starting to do your research. Be as well informed as possible with regards to your injuries, prognosis, etc. etc. etc. it will help you hugely down the road. At the outset of a personal injuries case very very few people have a notion of what a fair settlement figure is. Ultimately you're being asked to settle on a price for something you've no notion on how to value. There are some very good websites out there that can help: the courts website has a useful search feature to search back and read through past personal injuries cases (You won't find them on the courts site through google), there is a "calculator" on the injuries boards website, consult the "Book of Quantum" there are a couple of others I can't think of at the mo.... if you're interested (and have read this far - reply and I'll try and dig a couple of them out for you). Some people wildly over-estimate what compensation they want for the injuries they've received. Do your homework here & be objective.


SCENE OF THE ACCIDENT...
In my case I wasn't really in a position to do a whole lot. Car hit me and took me off the motorbike and I hit the ground hard & didn't get up. BE WARNED... when you have an accident adrenalin is an incredibly powerful drug that kicks in after the accident. After the worst pain I'd experienced in my life & will never forget the adrenaline and shock kicked in, so much so that I was in minimal pain and having a laugh with the fire brigade guys who were strapping me to the back board. I actually had life threatening injuries, two days later I had been treated for collapsing lungs (had a chest tube in) and had 8 broken bones along with various other bits and pieces.... not to mention most of the unpleasant colours of the dulux range of various parts of my body. Speed was also not a factor here, it was a low speed accident! In the end it was accepted 100% liability on the other party (before the motorbike speeding/weaving/not obeying the rules of the road brigade arrive ).

Needless to say, but I will anyway, call the Gardai. Get independent witnesses contact details. Someone accepting liability at the scene is largely worthless. When people stand back and take stock of what's happened/what they are responsible for then stories change very quickly and you now start the fight. Exchange details with the other driver, this is vital. Get insurance policy numbers from the disc. & details of driver. If you can take photo's of the scene then do so. If there are local businesses etc. or can see CCTV footage that may have captured the incident then look into this also.



HEALTH INSURANCE (VHI in my case, not sure if same applies to other insurance providers)
I won't harp on this one too long but its CERTAINLY one of the factors that helped me to form my opinion in point 4 above. If you have health insurance and you intend on taking a civil action (claiming compensation for injuries) then my health insurer requested that I/my solicitor sign an undertaking. This undertaking essentially would mean that my health insurer would get 100% of their costs re-imbursed. On the surface, sounds fine? The Law Society of Ireland have instructed all solicitors not to sign these undertakings, you can instruct your solicitor to do so if you wish contrary to advice. So why are the Law Society saying no? Well ultimately it's to protect you. I understand there have been situations where liability is not established at 100% fault. For example if you are found 30% liable (know as contributory negligence) for your accident than you get 70% of your general damages and likely 70% of you special damages (out of pocket/medical expenses etc.). Leaving the claimant to foot the 30% shortfall back to your health insurer out of your settlement!!! The stupid thing about all of that? if you drove down the road and smashed into a wall where you were 100% at fault they'd happily pick up the medical costs and not a thing would be said (not quite but you get the point). Deeply unfair.

So what happens if the undertaking isn't signed? I can confirm what happened in my situation. Essentially I went to various hospitals/clinics for various procedures (diagnostic/surgical/etc), filled in my VHI claim form outlining all of the details. There is a section on the form asking if the costs can be recouped to which I say yes... fill in the details of accident and solicitor contact details etc. Hospital performs the procedure, send off the claim to VHI, VHI reject the claim on the basis of no undertaking has been signed, hospital invoice the patient (me) directly, I send invoice the solicitor, solicitor writes to hospital outlining the process..... repeat for each medical procedure. I got second demands, final demands, threatening legal action etc. from hospitals over outstanding invoices all of which my solicitor had to field and respond to. Hugely stressful.... why didn't I just pay them? medical bills were well into 5 figures and building.

Long story short... it's a nightmare/mess... I'd love if FSO (Financial Services Ombudsman) would deal with it in a landmark ruling and tell health insurance companies to cop on. Hopefully this has changed.


PIAB/Injuries Board
Tonnes of threads on this already so I'll just outline how it differed from the "vanilla" process for me. All personal injuries (bar medical negligence & 1 or 2 other things) legally have to go through PIAB (Injuries Board). In my case the insurance company never responded to the submission of the case, the respondent has 90 days to respond.... in my case (and I believe it may be the default) if insurance company fails to respond the default position that PIAB assume is that liability is not contested and proceed to assessment. Note: this is without prejudice (i.e they can still fight it tooth and nail down the road). As I understand it typical running time for a PIAB assessment is around the 7/7.5 month mark. They have a limit of 9 months but on rare(as I believe) occasions they can extend this. In my situation, after the first 9 months (which started ticking after the 3 months waiting for no reply) it was extended by a further 6 months and then a further 2 beyond that. After all that time they determined that they couldn't assess due to complexity of injuries and gave authorization to proceed to court.


MEDICO LEGAL REPORTS
Medico legal reports essentially are medical evidence from a legal perspective. Basically if you had an injury and it's not on a medico legal report, you didn't have it. Simples... the medical legal report essentially outlines the injury, what happened, treatment and long term prognosis based on the opinion of the writer. These are typically requested by your solicitor by request from treating medical professionals.


COURT PROCESS
So, you've got your authorisation to go to court. You may/may not have a solicitor. There are tonnes of threads regarding whether you should/should not have a solicitor from the outset.... I'm not going to give advice here. I did and it was helpful in my situation. From the time papers are prepared served & filed (might not have terminology 100% spot on here) it was about 6 months between paper filing and a court date (this was high court). So what happens when papers are filed?

I'll give the 10,000 feet view here. Your solicitor gets papers (your case essentially) drawn up and submits it to a barrister for advice. Quick side note here.... barristers are essentially independent big guns for hire, many will have specialisms in different areas. The barrister will be the one responsible for presenting and fighting your case in court. The barrister will give their opinion on what may need to be done/altered etc. e.g. getting an additional medical legal report, advice on evidence, engineers reports etc. etc. Essentially ensuring that your case is presented in the best possible way. Your papers basically outline the accident, your injuries (via medico legal report(s)) and outline why the other party was at fault. This is then served and the respondent (usually insurance company) prepares their defence. My solicitor was confident that the insurance company would provide what's called an "assessment defence" (based off verbal confirmation that liability was not an issue). i.e. we accept liability lets figure out numbers. However, at this stage the defence produced a full defence. Long story short... it's all about posturing now in the run up to the big fight. Your papers will say the respondent was in the wrong for the following 15 reasons. Their defence will outline how you're at fault for the following 20 reasons. Everyone sets out their stall and the grand game of chicken begins.... who blinks first. Things went quite for a long time.



TENDER OFFER
So what's a tender offer? As I understand it the defence can submit what's called a tender offer up to 8 weeks before the trial date (after that they can't). A tender offer is basically a full and final settlement offer (with a twist). If you say yes, naturally it's done and dusted... claim over. If you say no & you proceed to trial you need to be careful. The judge is not aware if a tender offer has been tabled at all and how much it may have been for. If the judge awards less compensation than the tender off the defence can "pull it out of their back pocket" and say how the claimant was unreasonable and didn't want to settle early/wasting court time/yada yada and you could get stung with their legal costs and your legal costs. Tread carefully here. In my case the tender offer was a last minute ill prepared attempt which was way low balled so said no with little/no risk.


NEGOTIATIONS
The defence tried to get a hold of us for negotiations a couple of weeks before trial however one of our focused medico legal reports had a nasty surprise in it that we hadn't expected (guess I had that to look forward to in later life) or costed so cancelled. Things went quite again until the days before the trial. In my case it was 3 days before the trial when the defence wanted to meet for negotiations again. I was 100% confident about going to trial if required (my diary was invaluable here in refreshing my memory of everything I'd gone through and getting me into the right mindset), I'd waited almost 4 years and another 3 days wasn't going to make a difference to me.

Be wary of floaters!!! (this isn't toilet humour, I'll explain in a mo)

This was the first time I'd met my junior and senior counsel and have to say she was SUPERB. She outlined exactly the case, the injuries, what a fair level of compensation was (which matched up to all the research I had done) and started the ball rolling. She was actually quite a character. e.g. coming out to put "offers" to me knowing well it was still a low ball but out of courtesy to the defence she was "putting them to me" when she was largely stretching her legs and knew they still weren't in the right ball park. She was an incredibly reassuring safe pair of hands. It went back and forth for a couple of hours and we arrived at a fair number and that was that. It was agreed, signed and that was it. I have to say it was one of the most anti-climactic events in my life. Walked out of the four courts onto the quays and that was it, it was finally over.

So what's this floaters reference? It was a former colleague of mine who'd gone through the negotiations process in the four courts (his wife had a bad accident the year before me), unfortunately they weren't able to secure a meeting room to hold up in and were out in the open area of the four courts (like we were). Floaters are essentially hired ears for the insurance companies doing their utmost to overhear, read body language etc. etc. to understand your mindset/confidence/etc. (to use a poker analogy - trying to take a peek at your hand during the game). He had spotted one during his negotiations and I personally spotted at least 1 who was conveniently close by any time my barrister was back from negotiations. Be warned, it happens... it's all a grand game of posturing and charades, show no weakness.


SETTLEMENT
So once it was agreed, cheque was issued to my solicitor about 4 weeks later and bills could start to be paid.



Thanks for reading, I hope something above comes to the aide of others going through the process and I feel a little better by returning some of the karma to the pool