In dealing with Personal Injury claims I am often asked what exactly the “Injury Board” is and what it has to do with compensation claims. It might be useful, therefore, to set out briefly the history and function of the Injury Board, formerly known as the Personal Injury Assessment Board.
The Board was set up in 2003 under legislation introduced by the then Tánaiste, Mary Harney, as a result of considerable lobbying by the Insurance Industry to introduce a system for claims to reduce their overheads and payments and increase their profits. Prior to 2003, Personal Injury claims were taken in the Courts where claimants were legally represented and either settlements reached or compensation awards made by Judges.
After the establishment of the Injury Board in 2003 all that changed. From then on, all claims for compensation for injury, such as car accidents, work accidents, slip and fall accidents, etc., had, in the first instance to, be lodged with Injury Board. Medical negligence claims are excluded and ordinary court proceedings can be taken for those. Otherwise, an injured person must prepare an application for compensation and file it with the Injury Board within the normal time limits of the Statute of Limitations.
The person against whom the claim is being brought is known as the “respondent”. This is usually an Insurance Company. When the application has been lodged with the Board the Insurance Company can decide whether to allow the Injury Board assess the case or not. The Insurance Company does not have to admit liability for the accident. If the Insurance Company is unhappy with the assessment made by the Injury Board it can refuse to accept it and then the claimant has to start from scratch and issue proper court proceedings – usually nine months later.
The Injury Board does not pay compensation – it just “assesses” it. When it makes an assessment the claimant and respondent can accept or reject the assessment. It is only if both parties accept the assessment that it becomes binding and is payable by the Insurance Company. If it is not accepted by both parties then the Injury Board issues what is known as an Authorisation and the claimant can then go to court in the normal way.
Deciding whether to accept or reject the assessment by the Injury Board is a serious matter. The claimant has to bear in mind, that if he rejects the assessment and goes to Court, the Insurance Company can still deny liability for his accident and fight the case. The claimant also has another difficulty. Again under pressure from the Insurance Industry in 2007, a further Act was brought in to the effect that if a claimant rejects an assessment made by the Injury Board, proceeds to Court and gets less compensation in Court than the Injury Board assessment, he will not be awarded his costs and may have to pay the costs of the Insurance Company. There is considerable legal opinion to the effect that this Act is unconstitutional but, as I write, it remains unchallenged.
The extraordinary feature of the Injury Board legislation is that claimants seeking compensation are expected to deal with all this legislation, filing of applications, making decisions on assessments etc., without the benefit of legal advice as assessments made by the Injury Board do not in general allow for payment of legal fees and, therefore, the claimant must – at Injury Board stage – pay his own legal fees. Initially the Injury Board refused even to correspond with Solicitors on behalf of claimants but that was challenged in the High Court and the Injury Board was ordered to correspond with claimants solicitors, which they now do.
It should be clear, therefore, that it is important that claimants seek legal advice in relation to any personal injury claim so that they understand fully the workings of the Board and the implications of an Injury Board assessment and the time limits involved in making claims and the consequences of refusing an assessment.
Mary Harney, in introducing the legislation back in 2003, said that once the Injury Board was in place she expected a “quid pro quo” as she put it, from the Insurance Industry in the form of reduced premiums. Nine years later we are still waiting for the “reduced premiums”!