As part of measures to address the concerns of the insurance industry and wider public regarding the level of personal injury awards and associated legal costs, the Irish government commenced a series of structural reforms in the management of personal injury cases starting with the Personal Injuries Assessment Board Act 2003. These reforms are continuing with further measures to come into effect in the near future.
The Personal Injuries Assessment Board ("PIAB") commenced operation in 2004 and is a state agency operating under the Department of Enterprise, Trade & Employment. PIAB was designed to provide an independent assessment of the value of personal injury claims with an assessment to be provided within a set time limit and in a cost-efficient manner.
The intention was for the PIAB process to be a straightforward one, with the submission of a claim in a standard format with a medical report and proof of expenses and with the applicant being independently medically reviewed by PIAB which would then assess the value of the claim value. The Respondent, being the party against whom a claim is made could decline to accept liability from the outset and PIAB would then issue a certificate to enable personal injury proceedings to issue instead. If the Respondent agreed to proceed with the assessment, PIAB would ultimately provide an assessment in monetary terms of general and special damages which could be accepted or rejected by both the Applicant and Respondent. If either party rejected the assessment, then PIAB would then issue a certificate to enable personal injury proceedings to issue instead.
PIAB does not award any legal costs which must be borne by the parties.
- PIAB Book of Quantum versus Personal Injury Guidelines
As part of the PIAB process, a Book of Quantum (which was revised from time to time) was issued by PIAB to provide guidelines on the level of general damages for categories of injury based on the severity indicated by the medical report on the Claimant with ranges in value. The PIAB Book of Quantum was superseded and replaced by the Personal Injuries Guidelines, which were issued under the Judicial Council Act 2019. In practice many PIAB assessments were rejected by Claimants who went on to issue personal injury proceedings with a view to recovering their legal costs or on the basis that a Court was likely to issue a higher level of general damages. The introduction of the Personal Injury Guidelines had the effect of reducing the percentage of acceptance of PIAB assessments to 36% following the operation of the guidelines in April 2021.
There have been several constitutional challenges to the Personal Injury Guidelines and in effect to the operation of PIAB. The Supreme Court is expected to issue its judgement in the case of Bridget Delaney -v- The Personal Injury Assessment Board, The Judicial Council Ireland and The Attorney General shortly. The High Court dismissed this challenge to the Personal Injury Guidelines and held that there was no encroachment on judicial independence as a Court could depart from the Personal Injuries Guidelines provided there were proper reasons set out for doing so and that Ms. Delaney had no constitutional right that entitled her to a particular sum of damages. One of the submissions made to the Court on the Plaintiff's behalf were that if the PIAB Book of Quantum had been used rather than the Personal Injuries Guidelines, she would have received an award of general damages of approximately €34,000 rather than €18,000 under the guidelines.
The Court decision has been subject to a leapfrog appeal, which meant that the appeal bypassed the Court of Appeal when the Supreme Court accepted that the case involved issues of significant importance. A number of other challenges to the operation of the Personal Injuries Guidelines have been adjourned pending the Supreme Court's decision.
- Amendments to PIAB Procedures
PIAB is to be renamed The Personal Injuries Resolution Board ("PIRB") with an enhanced role around the collection and publication of personal injuries data, research and promotion of its work with the public.
PIRB may now deal with additional types of claims. Previously, PIAB would not assess claims which consisted of psychological damage or where a long-term prognosis was likely to be unavailable for some time and therefore fell outside the 9-month assessment statutory timeframe. PIRB will now be entitled to assess claims which wholly or partly consist of psychological damage, but it remains to be seen whether cases involving such injuries will be assessed as a matter of course. PIRB will now have a two-year time limit when a long-term medical prognosis is not immediately available. This time limit can be extended with the consent of all parties.
Information provided to PIAB was deemed to be confidential information, but PIRB may now disclose information to An Garda Síochána if it is of the view that the information may relate to the commissioning of an offence or if information was provided in a false and misleading way.
A new mediation process, which is voluntary, may be facilitated by the PIRB which is based on the Medication Act 2017. Where a Mediation Agreement is negotiated, PIRB will issue an order for payment of agreed damages and if mediation is not successful, the claim will be referred for assessment in the normal way. Either party can withdraw from mediation.
Finally, from 13 February 2023 where an assessment has been accepted by a Respondent but not by a Claimant who then brings personal injury proceedings and fails to recover an award higher than the assessment, the Respondent will have been deemed to make an offer of tender on the acceptance date equal to the amount of the assessment. This is potentially the most significant amendment of procedures to date given that if the Claimant does not obtain an award of damages from a Court which is greater in value than the assessment, then not only will the Claimant not recover their own legal costs but then will be liable for the Respondent's costs from the date of the assessment as well.
The volume of personal injury claims generally declined during the Covid era which also saw a decline of 44% in the value of general damages as assessed by PIAB from 2020, with only 25% of awards now being €15,000 or less. A review of the operation of the amendments will be made within 18 months of the commencement of the sections which amend the procedures with a report on that review within a further 12 months.
The latest reforms to personal injury procedures are designed to continue pressure to reduce the level of awards, reduce legal costs and address what the insurance industry has consistently claimed is a significant level of fraud in personal injury claims. In my experience, outright fraud in personal injury claims is rare but not unprecedented. Exaggeration of the nature, effect and timescale of injuries is far more common than outright fraud.
What is clear is that further reforms of personal injury procedures are likely to be made. Motor insurers in particular will continue to come under pressure and scrutiny to reduce premiums, having regard to the reduction in personal injury awards and costs.