When an Assessment is made by PIAB, the question for you to decide is, should I accept the PIAB Assessment of my claim or not? An Assessment is a figure which PIAB estimates reflects the full value of your claim.
How do I decide whether or not to accept this Assessment?
In simple terms, this is no easy task. If you have a solicitor, you should ask what he or she thinks of the assessment considering the injuries sustained. Alternatively you could use our online claims calculator or seek a free online assessment here.
How long do I have to make a decision?
It is important for you to be aware of the time limits for accepting or rejecting an Assessment. As far as PIAB is concerned, the person making the claim is known as the ‘claimant’ or ‘applicant’ and the person you are claiming against is known as the ‘respondent’.
A claimant has 28 days to decide whether or not to accept an Assessment, and a respondent has 21 days to decide whether or not they accept it. This means that a claimant, has 28 days from the date of the Assessment to notify PIAB as to whether or not they accept the amount, PIAB have estimated a claim is worth. It is a good idea not to advise PIAB if you have accepted or rejected an Assessment until after the 21-day period, because at that time you will know whether or not the respondent is accepting or rejecting the Assessment.
What percentage of applicants reject the PIAB Assessment?
It is vital to realise that you are under no legal obligation to accept the PIAB Assessment. In fact, statistics show that 49% of claimants reject the PIAB Assessment. Once you receive your Assessment from PIAB, the main questions you have got to ask yourself are:
- “Is this figure a fair and reasonable amount to compensate me for the injuries, pain and suffering (both past, present and, more importantly, future pain and suffering) and all out-of-pocket expenses and loss of earnings I have sustained as a result of this incident?”
- “Has PIAB taken into account the full extent of my injuries (both physical & psychological) and/or have I fully recovered from my injuries?”
If the answer to either of these questions is no, then you should consider rejecting the Assessment.
How will the 2021 Personal Injury Guidelines on personal injury awards affect any future Court award?
You may be aware of the recently introduced 2021 Personal Injury Guidelines which have been widely and publicly reported – a complete version of the guidelines can be read here.
Legal costs and who pays my legal bill?
A PIAB Assessment does not include any contribution towards your legal costs and only often a percentage of your “Special damages” and “Fees and other expenses necessarily incurred”.
This will mean that if you accept a PIAB Assessment, you personally will be liable to discharge the your legal bill.
What happens if you do not accept a PIAB Assessment?
If you reject an Assessment, PIAB will then issue what is known as an “Authorisation” and this will permit you to issue proceedings and bring your claim to court.
It is very important to understand the costs implications of rejecting a PIAB assessment and decide to proceed to court instead. If you decide to proceed to court, you will be referred to as the ‘plaintiff’ and the other side will be referred to as the ‘defendant’. In general, whoever wins in court, the losing side is usually ordered to pay the winning side’s legal costs. However, it is crucial to be aware of the special rules in relation to personal injuries cases.
There are special legal rules in relation to legal costs where a respondent accepts the Assessment, but you reject it. Those rules are set out in section 51A of the PIAB Act 2003 (as inserted by section 1 of the PIAB (Amendment) Act 2007). In that scenario, if the final court award or settlement turns out to be less than the PIAB assessment, the defendant cannot be ordered to pay your legal costs in the normal way and the Court may, if it believes it to be appropriate, order you to pay a portion or even all of the defendant’s costs. As such, if the Respondent in your case were to accept the PIAB Assessment and you decide to reject it, you run a risk in relation to costs if the final court award turns out to be less than the PIAB Assessment amount.
In accordance with Section 3 of the Personal Injuries Assessment Board (Amendment) Act 2007, if you, although successful in court, do not receive an award of damages in excess of that assessed by PIAB the effect will be as if the defendant had made a lodgement of that sum into court. This means that the defendant(s) will be entitled to ask the court to refuse an award of costs in your favour. In other words, even if you win your case, you would not be able to recover some or all of your legal costs from the defendant and this will mean that you personally will have to discharge all legal costs owed.
What happens if you accept a PIAB Assessment?
It is vitally important to be aware of the consequences of accepting an Assessment, especially if you are experiencing any ongoing symptoms. If you accept the Assessment, it becomes binding on you and you cannot change your mind afterwards, even if your symptoms became worse or you needed further medical treatment. As such, if your symptoms have not fully resolved or if there are uncertainties surrounding your recovery, then it would not be advisable to accept the Assessment.
When deciding whether or not to accept an Assessment, you should also be aware that PIAB assessments do not cover a claimant’s legal costs. The Respondent is not obliged to pay your legal fees and outlay if the PIAB Assessment is accepted by you. This means that, if you accept an Assessment, any legal fees and other outlay incurred must be paid by you out of (or deducted from) the the Assessment amount.
The Consumer Protection Code 2012
Under the Consumer Protection Code 2012 you have an entitlement to a ten day consideration period for the offer of settlement made.
You can however waive this entitlement to the ten day period and request that the PIAB Assessment monies be issued immediately.
A Solicitor’s Invoice & Disputes
Under the provisions of Sections 152, 153 and 154 of the Legal Services Regulation Act, 2015 a solicitors invoice must include the following:
- Summary of legal services provided
- Itemised statement of amounts
- VAT details including registration number, VAT rate and amount of VAT
- Time: details of the total amount of time spent on your case
- Damages and other money recovered on your behalf or payable to you from other parties
- Legal costs recovered on your behalf by [insurer/defendant/other party]
- Details of the procedure to be followed if you dispute any part of the invoice
If you dispute any of the items in the invoice you must tell the solicitor within 21 days of being provided with this invoice the reasons why you are disputing any item(s).
After you have communicated your dispute, the solicitor will try to resolve this informally with you. This may include referring the dispute to mediation, should you elect to do so.
If at any time you form the view that attempts to resolve the dispute informally have failed, you should notify the solicitor. Similarly, if the solicitor forms this view, they must communicate this to you.
If you inform the solicitor that the dispute cannot be resolved informally, or after receiving a similar communication from the solicitor you can apply for the disputed item(s) of the invoice to be formally adjudicated upon. You can pursue this course of action by contacting the Office of the Legal Costs Adjudicators.
The address for the Office of the Legal Costs Adjudicators is
1st Floor
Merchants House
27-30 Merchants Quay
Dublin 8
D08 K3KD.
Their phone number is 01 888 6301 and their email address is [email protected]
The solicitor may also apply for the formal adjudication of any disputed item(s) of the invoice upon the expiry of a 30-day period from the date of your receipt of same. This 30-day period does not include the time spent attempting to resolve the dispute informally i.e. from the date upon which you inform the solicitor in writing of the disputed item(s) to the date when either of you informs the other that these attempts have been unsuccessful.
Absence of payment of an invoice is not necessarily notification that you dispute any item(s), which would invoke the informal process above.
If the invoice is reduced by less than 15 per cent, you are responsible for paying the costs of adjudication.
Experience in cases that have gone to court when PIAB Assessment rejected
In order for you to help you make an informed decision, a number of recent Court of Appeal decisions that have dismissed cases or have drastically reduced awards made by the High Court Judges and prior to making a decision on whether or not to accept the PIAB Assessment are below,
Margaret Payne v John Nugent:
Payne -v- Nugent [2015] IECA 268 (10 November 2015)
On December 2012, Margaret Payne was a back-seat passenger in a car that was rear-ended by John Nugent’s vehicle on Sundrive Road, Dublin. Payne suffered injuries to the back, neck and shoulder. In the High Court in January 2015, Mr Justice Kevin Cross awarded her damages of €67,985. The decision was appealed. Irvine, in her Court of Appeal ruling in November 2015, noted that Payne’s injuries to her neck and shoulder appeared to have healed within a year. In relation to her back, her GP prescribed painkillers and anti-inflammatories. Payne had used heat pads, attended physiotherapy sessions, and did home exercises. She stopped getting treatment in March 2014. Irvine said that “the most catastrophically injured members of society who suffer great pain and distress” and who may never work again or who may remain dependant on the care of others for the rest of their lifetime, are awarded general damages for pain and suffering of approximately €400,000. “Modest injuries should attract moderate damages,” she said. Seen in this way, the High Court award was “unduly generous”, and she reduced it to €37,985. Her two colleagues, President Sean Ryan and Mr Justice Michael Peart, agreed. The judgment is now considered a benchmark in terms of personal injuries awards.
Mary Nolan v Rafel Wirenski:
Nolan -v- Wirenski [2016] IECA 56 (25 February 2016)
Mary Nolan was a passenger in the car her husband was driving in September 2010 when it was rear-ended by Rafel Wirenski’s vehicle on the N7, near Naas, Co Kildare. Nolan suffering injuries to her shoulder, right hand and thumb. In a decision of the High Court in 2014, Mr Justice Anthony Barr awarded Nolan a total of €125,680. The judge accepted evidence that Nolan was unable to lift her arm above shoulder level. In the Court of Appeal, Irvine, supported by Ryan and Peart, noted that although Nolan had demonstrated during the trial that she could not raise her right hand above the horizontal, Wirenski’s side showed video (obtained by way of a private investigator) of her during a summer trip to the beach “waving enthusiastically” with her arm over her head. Irvine said the High Court was wrong to find Nolan could not lift her arm above the horizontal, given what could be seen in the video. This and another error served to reduce the award, but she also found that the award in general was “disproportionately large”. Personal injuries go from a minor sprain to injuries that might “deprive a plaintiff from birth of most if not all of life’s joys, while leaving them acutely aware of their predicament”, she said. Minor injuries should attract modest damages, middling injuries, moderate damages, and more severe injuries damages that are clearly distinguishable from those made for lesser injuries. She replaced the original award with one for €65,000.
Anthony and Rita Shannon v Debbie O’Sullivan:
https://www.bailii.org/ie/cases/IECA/2016/CA93.html
In November 2012, the Shannon’s were driving along Anglesea Road in Clonmel, Co Tipperary, when Debbie O’Sullivan’s car emerged from a road on their left and struck their passenger door with such force that the airbag was deployed. In the High Court in March 2015, Ms Justice Aileen Donnelly awarded Rita Shannon damages of €131,436.00, and her husband Anthony €91,463, mostly for pain and suffering in the neck and shoulder. The award was appealed and Irvine delivered a judgment in March 2016. Neither party missed work because of their injuries, Irvine noted. “Mr Shannon stated that there was nothing that he could not do. He was able to garden, put out the bins and go to work. His only complaint was that he had some difficulty casting, while out fishing. Ms Shannon confirmed that she was able to mind her grandchildren and go to the gym.” The Shannon’s injuries “must be viewed as modest indeed”. Anthony Shannon’s award was reduced to €40,000, and his wife’s to €65,000. The ruling was supported Peart and Mr Justice Gerard Hogan.
Martin v Dunnes Stores (Dundalk):
https://www.bailii.org/ie/cases/IECA/2016/CA93.html
On August 10th, 2011, Geraldine Martin left her position at a Dunne Stores checkout to get a replacement 10kg bag of potatoes for a customer. While trying to dislodge a bag from a pallet, she suffered a partial tear of her right bicep. She sued and in May 2014 was awarded €67,450 by Mr Justice Iarfhlaith O’Neill in the High Court. Dunnes Stores (Dundalk) appealed not just the size of the award, but also the issue of liability. In the Court of Appeal in March 2016, Irvine, supported by Ryan and Hogan, granted the appeal. Martin’s injuries could not be attributed to any breach of duty or care on the part of Dunnes. Based on the training Martin had received from her employer, she should have decided that trying to lift the bag was unsafe.
Elizabeth Lavin v Dublin Airport Authority:
Lavin -v- Dublin Airport Authority Plc [2016] IECA 268 (11 October 2016)
This case involved the duty of care the occupier of a premises has towards a visitor. In April 2015, Mr Justice Michael Hanna awarded €40,000 to Elizabeth Lavin who, in November 2011, received a “nasty injury” when she lost her balance and fell on an escalator in Terminal 2 of Dublin Airport. CCTV footage showed Lavin was not holding on to the handrail. It was her first time on an escalator. In the High Court, Hanna said she was one-third at fault for what happened to her. However, the airport was also at fault because of inadequate signage pointing out that there were lifts available. In the Court of Appeal, in October 2016, Peart decided that the airport was not responsible at all for what had happened to Lavin. The escalator was a danger in the ordinary sense that “if the user herself does not take some reasonable care about its use she may fall and sustain an injury.” The same could be said about a fixed staircase, he said. “Provided that reasonable care has been taken by the occupier, no liability will exist.” Hogan and White agreed. The claim was dismissed, and the award overturned.
Saundra O’Flynn v Cherry Hill Inns Ltd (The Oliver Plunkett Bar)
O’Flynn -v- Cherry Hill Inns Ltd Trading As The Oliver Plunkett Bar [2017] IECA 211 (21 July 2017)
On February 17th, 2012, Saundra O’Flynn was in the Oliver Plunkett Bar in Cork with two friends. At one stage, while passing through a set of automatic doors, her ring finger got caught as the doors closed, and the fingertip was crushed and severed. In January 2016, O’Flynn was awarded €75,000 in the High Court. Mr Justice Colm Mac Eochaidh decided the bar, in setting the closing speed for the door at other than the slowest possible speed, had failed in its duty to protect customers from foreseeable injury. In the Court of Appeal in July 2017, Irvine did not agree. She considered it important, in the context of cases of this nature, “to state that I could not disagree more with [the trial judge’s] conclusion” that a patron such as O’Flynn was not to be faulted in any respect. “Adult members of society are obliged to take care for the own safety and cannot divest themselves of responsibility for their actions.” The High Court award was set aside. Irvine’s colleagues Ms Justice Máire Whelan and Ms Justice Leonie Reynolds agreed.
Paul Gore (a minor) v John Walsh and Darren Walsh
Paul was four years old when, in 2011, he fell in the rented house where he and his mother were living, in Cabra, Dublin. The house belonged to landlords John Walsh and his son, Darren. Paul fell on to the uncovered spindle/valve of a radiator and was left with a two-inch scar on his back which the High Court was told would fade over time. Mr Justice Cross decided on damages of €50,000. In her judgment in the Court of Appeal in October 2017, Irvine decided the award was excessive, and reduced it to €25,000. “If modest lacerations such as that sustained by Paul are to attract awards of €50,000 it is difficult to see how the court would be in a position to make a proportionate and fair award in respect of, for example, substantial third-degree burns to a large area of the body including the face which would not require an award of damages far beyond the level of damages commonly reserved for those who sustain the most extreme type of catastrophic injury such as severe brain damage or quadriplegia.” Her colleagues Ryan and Whelan agreed.
Louse Byrne v Ardenheath Co Ltd
Byrne -v- Ardenheath Company Ltd & Anor [2017] IECA 293 (09 November 2017)
On December 20th, 2012, Louise Byrne slipped on a drizzly, damp day when walking down a grassy bank at the defendant’s car park in Mountview Shipping Centre, Blanchardstown. She broke her ankle. In a High Court ruling in February 2016, Hanna awarded Byrne damages of €75,040, having discounted a higher figure by 40 per cent to take account of Byrne’s contributory negligence. In the Court of Appeal in November 2017, Irvine overturned the High Court award. If people want to take a short cut down a slope, they are entitled to, she said, but “if they are injured as a result they cannot seek to blame the occupier”. The judge also made a general point about the interpretation of the 1995 Occupiers Liability Act. Judges should be careful when interpreting such statutory provisions “to ensure that they do not inadvertently and contrary to the intention of the legislature by their judgments end up denying children the joy of running down a grassy slope in a public park on a dry summer day, or the golfer the pleasure of playing to an elevated green surrounded by a grassy bank”. Irvine was supported in her view by her colleagues Ryan and Whelan.
Summary
Deciding whether to accept a PIAB Assessment is not easy.
If you have a solicitor, you should ask what he or she thinks of the assessment considering the injuries sustained. Alternatively you could use our online claims calculator or seek a free online assessment here.
