Personal Injury cases – A guide to taking a compensation claim
I have put together this short guide on how to take a compensation claim * and to highlight some of the pitfalls and how to avoid/minimise them.
- Initial settlement offers in the weeks following the accident*
The initial few weeks after an accident* can be a very painful and worrisome time for someone who has been injured. More often than not you will be in shock and it can be surprising how long it can take for that shock to wear off. Because of this, I do not advise any of my clients to try to deal with any major issue in their lives in the immediate aftermath of an accident* in which they have been injured. Clients often report to me after several months that they did not really recall the first weeks after the accident*, They can recognise the shock looking back on it but not while going through it.
it is always my advice, therefore, not to try to negotiate a settlement for a compensation claim * with an insurance company or other party in the first few weeks after an accident*, particularly where Post Traumatic Stress Disorder is suspected. The other party will, more than likely,still want to settle with you once you feel strong enough to deal with it.
2. it must be someone else’s fault to take a compensation claim*
You can usually pursue a successful compensation claim* where it can be proved that the accident was caused by the negligence of another party (i.e. that it someone else’s fault). If it can be shown that the accident* was solely your own fault or the fault of a third party not being sued, then you will not succeed in an action for personal injuries.*
Likewise, if it can be shown that you are partially responsible for the accident* you will only be awarded part of the compensation claim *. A specialist personal injuries* solicitor can advise you as to whether there is any risk that you will be held fully or partially responsible for your accident*. it is often still worthwhile to pursue a compensation claim * where you are partially responsible. Again, a specialist personal injury* solicitor is best placed to advise you on the merits of your potential compensation claim *.
3. The compensation claim * process explained
(a) The Injuries Board
The first thing your solicitor will do, having taken your detailed instructions, is to send a detailed letter of claim to the person who is felt to be responsible. This is a very important step. Firstly it is required to be done within 2 months of the accident* so that your claim is not prejudiced and secondly, it allows the person to inform their insurance company that they are being sued. This allows the insurance company to initiate their own processes and carry out their own investigations.
The Injuries Board is a statutory body based in Dublin which assesses most compensation claims * in the first instance. A strict time limit of 2 years applies to personal injury* cases, which means that court papers must be issued out of the Court and in some cases, served, before the period of 2 years is up. If this does not happen, you are no longer allowed to pursue your case ( this is know as being statute barred).
As most personal injuries* cases must now be processed through the Injuries Board first, this does not give the injured party long to act. In my experience the quicker you start the process the better your case will be. For example, it is easier to get statements from witnesses while it is relatively fresh in their minds, and this could be the making of your case. Likewise, an engineer may be required to examine the scene of the accident and prepare a report and this can be very difficult to do accurately if time has passed and alterations/repairs have been done.
You must submit your claim to the Injuries Board within 2 years of your accident or in most cases, you will be out of time and can no longer pursue a case. I would advise a person making a compensation claim * to submit their application form to the Injuries Board well within the 2 year time period as if it is rejected by the party being sued or their Insurance Company you will need time after that to instruct your solicitor to draft and issue your court papers.The Injuries Board will assess your claim if the other party agrees. The person being sued does not have to agree and if the application is rejected by the party being sued, then the Injuries Board has no further role and you have the option of proceeding to court or dropping the matter. It is important to note that the Injuries Board do not assess purely psychological injuries.
if both parties agree to have the compensation claim * assessed, the Injuries Board proceeds to assess the compensation claim * based on the medical evidence you have provided them with. it usually takes at least six months for this assessment to fully take place. Once the assessment is completed they will issue a statement setting out the amount of compensation * which they believe is sufficient for your injuries and any other losses, such as loss of earnings. it is important to note that both or either party can reject the suggested amount. if both parties are happy with the assessment figure the Injuries Board issues an Order to Pay to the person responsible for the injuries* or their insurance company. Your solicitor will advise you on whether the amount being offered is reasonable compensation * for your injuries*. Generally the award is paid out within a matter of weeks. From time to time the person being sued refuses to pay and unfortunately the injured party must then pursue them for the award much like any other debt.
While the Injuries Board advertises widely in an effort to convince injured parties to make their claim without a solicitor, I do not advise this unless your case is extremely straightforward. There are a number of pitfalls to be aware of.
Firstly, you as the injured party, must be aware of the time limits as set out above. Most people, naturally enough, are not. I keep a very detailed and complicated diary for my clients to make sure that all of the relevant time limits are met.
Secondly, the quality of the medical evidence you submit with your application will determines the level of the award proposed by the Board. As a specialist in this field, I can tell you that not all medical reports are the same. if you send in a g.p. medical report with scant detail for a complex back injury with nerve damage, the Board can only assess the award on that basis. A specialist solicitor will advise you of the names of good consultants in the correct fields, such as orthopaedic surgeons, to use, should this be necessary.
Thirdly, if the award is rejected by the person being sued, you are back to square one and will no doubt need to engage a solicitor to pursue them through the courts. The earlier you engage your specialist personal injury* solicitor the better as they start to put your case together from the very beginning.
Fourthly, and linked to my third point above, if a solicitor is only engaged after the Injuries Board process has been finalised, your case may already have been prejudiced without you knowing it. The main area of concern that i see, time and time again, is the fact that the person being sued does not have to allow your engineer to inspect the scene of the accident * until legal proceedings have issued. if you bear in mind that the Injuries Board process usually takes upwards of a year from start to finish, that leaves a lot of time for the scene of an accident to change/be changed.
For example, if there was an accident * where a patron tripped on a raised floor board in a restaurant and broke an ankle, who is to say that the raised floor board would not have been altered a year later when the legal proceedings have finally issued? What your specialist personal injury* solicitor will do is to write to the person being sued or their insurance company as soon as possible after the accident * and notify them that the scene of the accident has to be preserved pending an inspection by our engineer or pending proceedings issuing. If they do not undertake to do so, then we can take them to court to force them. Usually, they will then allow our engineer to access the scene of the accident * to carry out an inspection and take photos for his report. This gives the injured party a great advantage as the engineer can advise as to whether the restaurant is liable and the scene can be photographed before anyone has an opportunity to change it.
(b) The Court Process
If your case is not assessed at the Injuries Board, the next step is for your solicitor to send a set of papers to a barrister to draft the Personal Injuries* Summons. This document is stamped and lodged in the Court office and is served on the person felt to be responsible for the accident or his solicitors. The Summons will set out the basis of your compensation claim, why you hold the ‘defendant’ responsible and what relief’s you are seeking by way of compensation.
The defendants file an Appearance document to say they will answer the claim and a Defence document.in which they will either deny their responsibility outright or admit to certain aspects of it. They can raise a set of questions called Notice for Particulars in advance of this if they wish.
A process called Discovery often follows on from this, which involves your solicitor seeking certain specific documents or CCTV footage to assist your claim.
A notice of trial is served and the case is listed for hearing. During this time , attempts are often be made to settle the case. Your solicitor will only be able to advise you as to whether a settlement amount offered by way of compensation is sufficient, if your injuries have fully settled down ( i.e. you know how long they are going to affect you for and to what extent.).
4. Costs
It is very important to be aware that the Injuries Board do not usually cover legal costs, unless hardship can be shown.
Where the case is progressed past the Injuries Board level and on to court, the usual rule in court cases is that the party at fault pays the legal costs of both sides. This means if you are successful in court or if the case settles, the other side will usually pay the majority of your legal costs and out of pocket expenses. Many personal injury specialists will agree to wait to be be paid at the end of the case where it is felt that the case is strong but this should be established and agreed with them from the outset.
5. Here to help
A specialist personal injury* solicitor is ideally placed to guide you through the process of making a compensation claim *, helping you avoid the pitfalls which can arise and ensuring that you are properly represented. Your solicitor will take the worry and stress away from you at an already difficult time and can advise you objectively on all aspects of your case.
If you would like some more information about the above, you can contact our litigation department on 0749890190 or email us on info@boycekelly.ie. We will be happy to answer any questions you might have.
*”In contentious cases, such as personal injury* cases and compensation claims *, an Irish solicitor may not calculate fees as a percentage or part of an award or settlement nor is it our practice to do so.” This statement is issued in compliance with the Solicitors Advertising Regulations.
This article is intended as a general guide only and is not to be taken as legal advice. Legal advice specific to your own unique situation should be sought in every case.