PIAB

The Personal Injuries Assessment Board (PIAB) was established in the Republic of Ireland by the Personal Injuries Assessment Board Act 2003.

The aim of the Board is to establish a compensation system for claimants, which will be in the alternative to Court proceedings, which it is hoped will substantially reduce or remove litigation costs.

The PIAB began taking Employer’s Liability cases on 1st June 2004, and Road Traffic Accident and Public Liability cases on 22nd July 2004. After these dates all actions must be referred to the PIAB for assessment.

Once a claim is lodged with the PIAB the Statute of Limitations is suspended. It is worth noting that the conventional three year period is to be reduced to two years in the Republic of Ireland from March 2005. Claim forms may be downloaded from the Board’s website which is www.piab.ie

The PIAB will register the claim and write to the claimant, and may request further information. At the same time they will advise the respondent of the claim. The respondent has 90 days to consent to an assessment by the Board.

If the respondent consents, this is on the basis that the Board will assess the claim on a full liability basis, using the PIAB Book of Quantum, (see www.piab.ie), which is in similar format to the JSB Guidelines, with obviously different values. The PIAB will arrange a medical examination of the claimant. The respondent will pay to the PIAB a fee of €850, and in addition a fee of €150 for the medical reports. The claimant will pay a fee of €50 which is recoverable as part of the award.

The PIAB must notify the parties of its assessment within nine months, which may be extended by a further six months. If the PIAB cannot make an assessment within fifteen months, they must issue a release, or authorisation to allow Court proceedings to be issued.

It is only with a Certificate of Release from the PIAB that the Plaintiff’s solicitors can issue proceedings. Once an assessment has been made, the claimant has 28 days and the Respondent 21 days to reject it. Note the different terminology to distinguish from conventional litigation – Plaintiffs are claimants, defendants are respondents, and awards are assessment.

There are some categories of claim that the PIAB will decline jurisdiction, for example medical negligence; applications for compensation under the Garda Siochana (Compensation) Acts 1941 and 1945; cases where there are not enough comparable settlements; or, cases involving allegations of psychological damage, which, “would be difficult to determine by means of assessment to which the assessors are limited to employing by this Act”. This list is not exhaustive.

If the Respondent feels that the claim is exaggerated or fraudulent, then the Respondent has the option of declining an assessment by the PIAB, as only a Court can decide if a claim is exaggerated or fraudulent. If the Respondent has consented to an assessment by the Board, and finds out during the assessment process that the claimant is exaggerating, then the Respondent can reject the award, and the matter will go to Court and the Court can decide if the claim should be dismissed.

As the PIAB is only in its infancy, no-one knows how it will work out ultimately. There are two immediate problems worthy of note.

If a Respondent consents to an assessment by the PIAB, for example in an Employer’s Liability case, e.g. an accident at work, this will not be construed as an admission of liability against the Respondent. Let us assume that the PIAB assess this case and after nine months makes an award which is rejected. A Release Certificate is issued, and the matter then falls into Court proceedings in the conventional way. The Defendant is then entitled to deny liability. The Plaintiff may seek inspection facilities, but the workplace or accident locus could have altered or changed in the interim period.

Access to a solicitor is another problem. The PIAB is set up on the basis that they will not pay for the claimant’s legal advice. There is a test case presently before the Irish Courts, in which a claimant alleges his constitutional right to be represented by a solicitor is being breached by the actions of the PIAB, in that it is seeking to deal directly with the claimant, rather than through his authorised solicitors. On 1st December 2004 the President of the High Court granted leave to the Law Society of Ireland to make submissions on behalf of the Profession in this case. The President of the High Court, Mr Justice Finnegan, echoing the old Northern Ireland High Court case of McDowell –v- Strannix [1951] said
“It might well be that through inexperience, limitation in education, illness, absence abroad or other causes that it would be desirable that there should be communication with a solicitor”.

In McDowell –v- Strannix, the Northern Ireland High Court refused to allow a defence medical examiner to question the Plaintiff on issues of liability, saying,
“A Plaintiff might be an uneducated man unable to look after his own interests; he might be overawed or perhaps even confused by the surroundings of the surgery or even by the presence of the doctor himself”.

This action commenced in the High Court on the 14th December 2004, and the outcome will be reported in due course. The PIAB are resisting the Court challenge, which reflects the Government’s determination and political will that the PIAB succeeds, in the hope that they can deliver lower claims costs experience to the Insurers, and thereby reduced insurance premiums to consumers, which the Government has made clear it will expect the Insurance industry to deliver.

Only time will tell if this succeeds.

Gavin Campbell
Campbell Fitzpatrick Solicitors
14th December 2004