1. The number of applications to the Injuries Board has increased steadily over the last five years. However, the rate at which the respondents are agreeing to an assessment (by paying the required fee) is not keeping pace with this increase. In short, the respondents are not engaging in the Injuries Board system with the same enthusiasm as time passes.
2. Each year the Annual Report of the Injuries Board tells us the Fee income from applicants and from respondents, respectively. It also tells us, somewhere, what the fees are for each.
3. So, for 2010, we can calculate that there were 25,767 applications to the Injuries Board. (The Board claims there were 26,964). In that year, only 12,732 respondents paid a fee. (The fee was €1050; it was reduced in 2011). That means that 13,035 applicants, more than half, were left without an assessment. (They get a certificate of authorisation instead).
4. The Injuries Board persists in using the word “award” when it means “assessment”. We know this because it also refers to “accepted award”. This use of language is misleading.
5. Taking this into account, we can see that the figure for acceptances in 2007 is almost the same as the figure in 2010, despite a substantial increase in total claims and a substantial increase in participation by respondents. There were 5,038 acceptances in 2010.
6. Interestingly, the figure for assessments for those two years is almost the same. (8,208 in 2007 and 8,380 in 2010).
7. That implies that there are more problematic cases appearing in the Injuries Board case load; or, that the Injuries Board is becoming more discriminating as to the complexities of personal injury claims.
8. Or, that the medical profession is not keen to run the risks that the Injuries Board system is potentially transferring to it. Errors in assessment (barring a constitutional action yet to come) cannot result in a liability for the Injuries Board, but that is very likely not true of the doctors working for the Injuries Board/respondents. Unlike the Injuries Board, they are not statutorily licenced to make mistakes with impunity.

1. I have been injured; will the person who injured me, or his/her insurance company, hasten to fully compensate me?

No, they will not. This is human nature and also implied in the social arrangements under which we live.

2. Will the Injuries Board ensure that my interests are fully looked after?

No, it will not. It has a limited focus. It only addresses one question; the level of compensation the injured person ought to get. It does little to ensure that you will actually get your compensation.

3.         How can that be?

An injured person will get nothing unless he/she can prove, if necessary, that some other person has been at fault and that the injury results from that fault. The Injuries Board expressly excludes consideration of fault.

4.         Surely that’s a good thing?

Yes, if the person who injured you expressly admits the fault.

5.         Will that happen in the Injuries Board system?

No, it never comes up for mention.

4.         Who will look after my interests, then?

You will.

5.         How do I do that?

By fully understanding what is implied in the Injuries Board system.

6.         What is implied in the Injuries Board system?

The Injuries Board system exists to ensure that any legal costs incurred by you as a result of your injury will be borne by you and not by the person who injured you.

7.         Is that true?

Not completely. That’s how the Injuries Board started out, but it has changed its mind. It now makes an effort to make your opponent pay for your legal representation, or some of it, if you, the injured person, are a vulnerable person.

8. I have been injured. Am I not vulnerable by that fact alone?

No, not in the view of the injuries board. In the view of the person from whom you are trying to extract compensation, or his/her insurance company, yes, you are vulnerable, but that is advantageous to them and they owe you no duty to reduce your vulnerability.

9.         I am inexperienced in these matters. Am I not vulnerable by that fact, then?

No, not in the view of the injuries board.

10.       What is a vulnerable person, in the view of the Injuries Board?

Someone who needs legal advice to make the application to the Injuries Board.

11.       But surely no such advice is necessary?

The Injuries Board thinks it is sometimes. If you are a vulnerable person.

Since 2004 the limitation period within which an injured person must issue personal injury proceedings, before being barred from bringing such a claim, is two years.

Because such a person is [generally] obliged to apply to the Injuries Board for an assessment of the value of the person’s claim before proceedings may be issued, time is suspended from running under the limitation period while the Injuries Board is considering the application (and, possibly, corresponding with the guilty respondent or his/her insurance company). Not only does time not run during that period, it does not commence running again for six months after the Injuries board issues its authorisation to the injured applicant to issue legal proceedings.

There is an exception to this regime; if the guilty respondent dies at some point the injured applicant has two years to issue legal proceedings from the date of the death of the guilty respondent. This time period, it appears, does not cease to run because the applicant has lodged an application to the Injuries Board.

It is very possible for an injured applicant to know nothing of the personal circumstances of a guilty respondent. Even the Injuries Board may know nothing of those circumstances; the Board will carry on correspondence with a lawyer or an insurance company acting for the respondent (who, in their turn, may also not know of the state of health of the respondent).

The Injuries Board claims to process applications, on average, within approximately seven months of an application. Depending on the facts of the case this may not be fast enough.

The risk of loss in these circumstances lies with the injured applicant, not with the Injuries Board.

Like all institutions, it is insulated from the effects of death.

The Annual Report of the Injuries Board is always worth reading. It suffers from a persistent tone of self-congratulation but the Injuries Board has access to information previously possessed only by insurance companies and it publishes it, or some of it, in the Annual report and other publications.

The Injuries Board views this information narrowly. It extracts it as statistics and makes little effort to draw conclusions from it.

For instance it remarked of public liability claims for 2009;

“Females accounted for 72% of the 1443 PL awards during the period of this review – over  twice as many (2.5 times) as males. This is a direct reversal of data for workplace accidents where females account for just over a quarter (26%) of awards.”

A curious mind would ask if this is evidence of something, and if so, what? Furthermore, to what use can it be put ? The Injuries Board doesn’t ask these kind of questions.

It is reasonable to speculate that women do more shopping than men; they are more vulnerable to traps or deficiencies in premises open to the public.

If that is the case, what does it say about the Occupier’s Liability Act 1995? Was it, in effect, directed to denying the claims of one sex, women?

The Injuries Board Report goes on to say:

“Just over half (51%) of the accidents under review took place in privately owned establishments, with one in four (25%) occurring in a retail/shopping outlet, one in five (19%) in a hotel/pub/nightclub or restaurant and 7% in leisure facilities like sports clubs/gyms and cinemas. almost a quarter of PL awards (24%) were made against local authorities and a further 8% involved transport and utility services.”

This is peculiar; there is a world of difference between “accidents” and “awards”. Many people who have accidents on the public highway will fail in their claim against a local authority. The reason is, they have to show that they, effectively, were injured at a place where the authority caused the defect which led to their injury. If they cannot show that, where the defect developed from wear and tear, say, they will fail.

This aspect is hidden in the use of “accidents” and “awards”. As they say in trade union circles, one is apples and the other is oranges; in a phrase, they are not comparable.

The title to this post is tongue-in-cheek. It is the appellation attached to one High Court judge, deemed too generous to personal injury plaintiffs, by a politically well-connected barrister.

It is worth bearing in mind that the plaintiffs will have successfully overcome many difficulties. They will have established that their defendant breached any number of duties owed to them. (See HERE for the Health & Safety Authority’s Guidance on Manual Handling of Loads. Breach of the Regulations referred to in the Guidance is a breach of a statutory duty; negligence aside, to breach the Regulations is sufficient to trigger a liability. Claims arising from back and similar injuries are some of the most intractable faced by lawyers and judges).

The legal industry in Ireland is small. It is a certainty that “Santa’s Grotto” heard of his new nickname and was intended to hear of it. It was, objectively, calculated to curb his “excesses” in the award of damages to personal injury plaintiffs.

It is an issue of interest to know which of these persons, the judge or the barrister, was right about the value of personal injury claims, but it is much more timely to ask; with a barrister like that strutting his stuff, how can any reasonable person think that Ireland has or had an “Independent Legal Profession”?

Sure, he was independent of the judge, but whose spokesperson was he?

In the provision of services to public authorities there is an exception to the obligation to place the business out to tender; the exception is legal services. This is why Government and State agencies can, without a blush, allocate substantial earning opportunities to the big Dublin firms of solicitors (some more than others) even where the work is not very esoteric or specialised. It is ridiculous to suggest that these firms are “independent”.

Consequently, the legal profession is not independent. Asserting it is does not make it so.

The title is an acronym for Fact Based Medicine. (Can there be any other kind?)

We hope our doctors are thoughtful, attentive and kind, but we also expect them to be competent, ie, rational. That’s why we expect them to seek the facts. Before you seek the facts you need to know what facts you are seeking. That applies to the legal industry as much as to the medical profession.

The practice of law is much more a collective effort than medicine is. It cleaves more to convention than medicine does, say.

This writer was in High Court 2 in the Round Hall of the Four Courts a few days ago. The Personal Injuries list was called over. It was a very long list. It featured those personal injuries actions which had now reached their hearing date and in which the parties had arrived in court for trial. But they did not get their trial, most of them. They were, metaphorically, in a traffic jam. Cases were still in the list and being called over that had first appeared a week before; that meant the parties and their witnesses (potentially, if not actually) had been returning again and again to the Four Courts seeking a trial and had been failed again and again. Each succeeding day brought a new cohort of cases into the list. They too, failed to get a hearing and would have to come back the next day, and the next day and so on.

The judge struggled to express what everybody was feeling; that it was time to consider abandoning ship, metaphorically, and cancel the list. But he would not do it, unless the Counsel asked him. He then resiled from this, to laughter, saying it was not a matter where they had a vote.

But of course, they do and should. The courts system would not function without the lawyers. However, the forensic traffic jam was a symptom of another problem; a cumulative failure to settle the cases.

Taking a benign view of politics, this is the kind of problem that prompts Ministers for Justice to commission a Report from the likes of The Committee on Court Practice and Procedure. See the PDF of the Committee’s 29^th Report (dated 2004) HERE- [DOC] CCPP 29th Report - Courts Service

In that Report the Committee remarked;

“At present a very small proportion of personal injuries cases go to trial. However, litigants have the right of access to the courts and the process available should be the dispensing of justice in a speedy, efficient and effective manner.”

And again;

“It… [personal injuries litigation]… is a small proportion of the High Court work. High Court judges are required to hear cases in lists on Personal Injuries, Bail, Bankruptcy, Chancery, Commercial, Common Law Motions Circuit Court Appeals, Family Law, Garda Compensation, Judicial Review, Probate, Proceeds of Crime Act, Asylum, Admiralty, Solicitors Act, Medical Council, Nursing Council, Dental Council, Extradition, European Arrest Warrants, The Hague Convention, The Luxembourg Convention and Crime.”

The Committee failed, among other failures, to look at the implications of the sentence “At present a very small proportion of personal injuries cases go to trial.” The statement is accurate and the credit belongs to the two branches of the legal profession, but those settled cases were not investigated by the Committee. The Committee was to “…examine all aspects of practice and procedure relating to personal injuries litigation and consider whether the present system of practice and pleadings is appropriate to modern personal injuries litigation.”

Surely the criterion of the success or failure of a practice or procedure is that it assist in the process of settlement? If the Committee did not investigate what was good and working in the then current system, how could they be said to have considered “modern personal injuries litigation”. (What is that?)

Then there was the note of regret; “However, litigants have the right of access to the courts…” and the recitation of the various lists, clearly addressed to lay ears. Those lists are not equivalent to each other and some generate vastly more work than others or, conversely, some generate little work.

What is notable is that Reports like this (particularly this one) depart from “initial conditions”. Here, the Minister defined the initial conditions. The Report then recites the then current practices. What is absent is evidence that the Minister’s conditions are pertinent to some real problem or that the current practices are seriously deficient.

We know that the practices and procedures were changed subsequent to the Report.

Now the Personal Injuries List is breaking down.

Don’t expect expressions of regret from any participants, or admissions that the changes for which the Minister was responsible have led to this.

All employers have a responsibility to protect their employees, contractors and visitors from accidents and injuries. The obligation to secure the safety of independent contractors is specifically expressed in Section 12 of the Safety, Health and Welfare at Work Act 2005.

This means that confusion as to who is or is not an employee need not deprive an injured person from securing proper compensation when injured in a workplace.

The employers duty includes ensuring:

That the employer provide employees with the necessary machinery and tools to complete the job. Those tools and machines are to be maintained in a safe condition.

The workplace must be kept in a safe, tidy condition with floors, doors and gates clean and clear and free from hazards.

The employer is vicariously for the negligence of his/her employees, so a worker injured by the negligence of a fellow worker is entitled to compensation from the employer.

Employees working at a height are protected by S. I. No. 318/2006 – Safety, Health and Welfare at Work (Work at Height) Regulations 2006.

See the judgment in Carroll v Mater Misericordiae Hospital [IEHC] 2011.

What a pity the court failed to make clear whether the Plaintiff had made an error, by applying to the Personal Injuries Assessment Board for an authorisation to issue proceedings against the Defendant, or not.

In addition, did PIAB fail to alert her in timely fashion that she was wasting time?

(Injuries sustained in the provision of a health care service are exempt from the need to apply to PIAB. An application to PIAB in such a case is a waste of time. Time is often critical, especially in medical negligence cases. It does not stop running if PIAB has no jurisdiction. That is why it was desirable that the court recite all the facts in the judgment.)

This writer remembers, he thinks correctly, that the phrase “compo culture” was coined by a PR spokesman for Dublin Corporation (now Dublin City Council). Probably the spokesman was simply adapting a phrase coined elsewhere, because the title to this post is known in the UK and, it appears in Australia.

Taken literally, we can confidently say that it is a universal social principle that compensation be paid where loss is suffered and the liability to pay for that loss lies with someone other than the victim.

This formulation is very wide; it will cover cases of injury arising from negligence, say, (See HERE for a treatment of Tort law in common law jurisdictions) but also claims for indemnity under an insurance contract.

The principle is not undermined by individual failures in making payment.

Taken with the provisions of domestic law a regional example of that universal principle is to be found in the European Convention on Human Rights (Article 6).

We are now, unfortunately, familiar with some compensation principles which, by arcane means, apply when banks fail. Certain creditors of such banks are compensated for their losses arising from default. The compensation is so certain that the default is scarcely admitted and is, for practical purposes, imperceptible. By those arcane means the liability to pay the compensation is passed to the citizens of the country responsible for supervising the failed bank. (The arcane means are not legally binding means).

It was always clear that the phrase “compo culture” was not an attempt to deny any compensation to any and all claimants; it was directed against one small class of persons, those persons who had been personally injured by negligence or breach of statutory duty. In effect, it was a brazen effort, if taken literally, to repudiate the obligation on wrongdoers of remedying the losses they had inflicted on others.

Life is complicated; consequently it has come about that the liability to pay compensation for personal injury frequently rests on both a liability in negligence and a liability under a contract of insurance. We see this in Domican v AXA Insurance Ltd. [IEHC] 2007 where the judge remarked that the plaintiff and the defendant had a relationship with each other (arising from the fact that the defendant had agreed to insure and indemnify a person whom the plaintiff claimed had injured him through negligence). In the UK that relationship is expressed in a civilized way in the Third Parties (Rights Against Insurers) Act 2010.

Ireland has no such legislation (and no proposals to remedy the situation). The UK made such provision as far back as 1933.

The Irish State has a very poor record in defending the constitutional right to compensation for personal injury. That should come as no surprise when we reflect on the reason why the Minister for Defence (and Ireland consequently) became liable to compensate soldiers in what was known as “the Army deafness cases”. A civil servant had consciously decided not to make provision to protect the hearing of soldiers from exposure to loud and damaging noise. That decision was recorded and the record was obtained by the claimant soldiers, all of whom could show they suffered hearing loss or damage following that decision. (Even without the decision the State would have been liable; it was not a novelty that loud noise is dangerous). The reason for the poor record is straightforward; Ireland clearly has (or had) a very poor quality of civil servant and politician. (In the Irish Times of 11^th December 1997 a headline read; “Smith says deafness claims are wrong and immoral”. Smith was the Minister for Defence.)

It is generous to say Ireland’s record is poor on this issue. Ireland is malevolent on the point. See HERE and HERE for this writer’s opinions.

Which of us is happy with our handwriting? Some, no doubt, but for many of us the admirable writing in our school handwriting workbooks is a thing of the past.

[The United States of America produced its Declaration of Independence in cursive script (HERE)]

So it is with other standards. Here in Ireland we call cursive script joined-up-writing and we aspire to that, but we have little tradition of its cousin, joined-up-government.

In Ireland, government must be conducted in accordance with the Irish Constitution and in pursuit of its objectives. One of those objectives is to vindicate the person [or the good name] of the citizen. That means that if a person is injured the State must and will ensure the citizen is compensated by any wrongdoer responsible for the injury.

You would think that this imperative would produce a regime directed to that purpose, but if you did you would be wrong.

Sure, in law a wrongdoer is liable to pay compensation, but Ireland is not anxious to ensure that that happens. If it were it would have introduced a system currently to be found in the United Kingdom. There, an injured person can enter an agreement with a lawyer to pay an enhanced fee for legal services, conditional on the claim being successful [“Conditional Fee Agreement”]. The defendant will then be liable for that fee in the event of success. In short, the UK recognizes that poor claimants are at a disadvantage relative to rich claimants, in legal proceedings.

This is an inherent feature of the previous UK position [and the current Irish one] where everybody is assumed to be a prosperous gentleman [probably Victorian] who pays his lawyer’s bills on a weekly or monthly basis and expects to recover those expenditures from any wrongdoer when he is successful in his claim that his lawyer prosecutes.

That assumed position is unreal. Such prosperous gentlemen are few and far between. Everybody knows this and yet, in Ireland, nothing is done to remedy the situation.

In fact, the opposite has happened. The government established the Personal Injuries Assessment Board [“PIAB”] to assist defendants. No claimant’s lawyer’s fees are payable by the respondent in the PIAB system. PIAB itself assures claimants that they do not need a lawyer to represent them, a claim at once untrue and an insult.

Any intelligent PIAB claimant must engage a lawyer at his or her own expense without any chance of making the defendant wrongdoer assume responsibility for that expense despite the fact that the defendant caused the expense to be accrued.

On top of all of that, in Ireland it is illegal for a lawyer to advertise that he or she will act for a claimant on the basis that the claimant will not have to pay legal fees if the claim is unsuccessful.

All in all, these provisions and arrangements are in direct opposition to the objectives of the Irish Constitution.