The Personal Injuries Assessment Board (“PIAB”) has published a book showing the level of damages the Board will recommend for various injuries.

The book is incomplete. We see this from the case of Kenny v Cowley [2006] IESC 37.

In this case the Plaintiff had a defective left eye before the accident (for which accident the defendant was liable). His right eye was injured in the accident and his vision in it was much reduced. The Supreme court judge writing the consensus judgment noted that the PIAB book did not deal with the loss of an eye. (In fact, the plaintiff’s claim was not simply for the loss of an eye; it was for the loss of his only useful eye).

The Supreme Court decided the award of €90,000 by the High Court for the injury was too low. It increased the award to €120,000.

Conventionally, to propose a debate is to, impliedly, claim to be reasonable. Calling for a debate overlooks the fact that we cannot, and should not, submit everything to debate; where things are settled and agreed, they should not be opened to examination (and procrastination), unnecessarily. The call may be further invalid (and in bad faith), in not really proposing a debate, but simply using it as an announcement of intended, forced, change.
That’s the reality of the debate proposed by Colm McCarthy, the economist, on compensation for personal injuries.
He, in effect, is proposing to reduce that compensation. His proposal could be ignored if we did not know that he expresses the view of Brian Cowen, the Taoiseach; that is, he expresses the view of the Government.
This is valuable. As a consequence of knowing his connections, we have an insight into the Government’s view of NAMA. Mr. McCarthy has proposed that NAMA be used to process the payment of personal injuries compensation.
Currently, the Government has tunnel vision when it comes to money and payments; it wants to reduce it’s liability to pay them. Imagine our scepticism if Brian Cowen claimed, now, that he wished to be “fair” in proposing, or introducing, a new method of delivering compensation to injured persons. (Consequently, we have Mr. McCarthy flying the kite).
For a long time the Executive has undermined the constitutional principle that the violation of bodily integrity be vindicated.
a) It abolished the use of civil juries to determine liability and quantum in personal injury cases.
b) It has reduced the time within which an injured person must issue proceedings against a wrongdoer, before being statute barred and deprived of the right to be compensated.
c) It has imposed a cumbersome procedure on personal injury claimants by means of the Personal Injuries Assessment Board (“PIAB”) (aka “the Injuries Board”).
d) It has attempted to block access of injured persons to experienced personal injury lawyers.
e) It has introduced intimidatory procedures for Plaintiffs in the personal injury litigation process.
In Ireland, as in the UK, we have formally addressed the necessary, process of reforming our laws.
We have a Law Reform Commission. We have a Committee on Court Practice and Procedure. We have a Constitution Review Group. We have an Oireachtas Committee on the Constitution.
In short, we are not lacking in mechanisms for correcting archaic legal elements.
Now, it seems, we have one, possibly two, more. They are Colm McCarthy, and NAMA.

The High court has furnished some clarification of an important matter relating to the Personal Injuries Assessment Board Act 2003 (“the PIAB Act”), in Gunning v National Maternity Hospital & Ors.

There is provision in the PIAB Act (Section 17 (1) (b)) for the PIAB to decline to issue an assessment of compensation in respect of certain classes of injury. This, however, can relate only to claims that fall within the provisions of the PIAB Act. In Section 3 (d) of the PIAB Act, some actions for personal injury are excluded from the requirement to apply to the PIAB for an assessment. They are actions -

…arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person”

The 1st Defendant in the action, the National Maternity Hospital, took issue with the alleged failure of the Plaintiff to procure a certificate from the PIAB under the PIAB Act, prior to the issuing of proceedings. (Where a certificate is required, the issue of the certificate is a condition precedent to the bringing of proceedings in court).

The Hospital argued that the pleadings in the action alleged a defect with, or in, a forceps used in the Hospital. It argued that a claim that a forceps was defective was not a medical negligence claim (“…the correctness or otherwise of the surgical procedure being carried out”), but was a defective product claim.

The court remarked on the arguments on the point as follows:

In my view, s. 3(d) of the Act of 2003 should be construed as applying to the factual circumstances out of which an action arises, rather than applying to the specific legal causes of action set out in the legal proceedings. I say this because if the latter approach is followed, it would result in some parts of the same grievance or complaint falling within the remit of the P.I.A.B and others falling outside. This would clearly be an undesirable situation, as it could result in two aspects of the same personal injury complaint proceeding in parallel in two jurisdictions, i.e. the Courts and the P.I.A.B.”

Although that is a valuable pointer, it is not now any more clear what the words “arising out of the provision of any health service to a person , the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person…” means, even in the context of “…factual circumstances…”.

Does it mean that only claims challenging the consequences flowing from the provision of such services are exempted by Section 3 (d) of the PIAB Act and not any arising in connection with the provision of such services?

If a patient in a Hospital or other health care setting slips and falls on the floor of the facility is he/she obliged to seek a certificate from the PIAB, or not? On the basis of Gunning v National Maternity Hospital & Ors, it would appear not. However, if a potential Plaintiff, taking no chances, applies for a certificate and the PIAB declines jurisdiction it would be open to the defendant Hospital or health care facility to plead that the Plaintiff had not complied with the PIAB Act. Gunning suggests that the practical solution is to treat the identity of the Defendant as indicative of the application of Section 3 (d) of the PIAB Act, but there must be a limit to that approach. Is there a difference between a patient slipping and falling in the corridor of a Hospital and the same patient (ex-patient?) being knocked down in the Hospital car park as he/she leaves?

Will the only relevant point of difference be the identity of the person causing the injury?

In May 2008 the Supreme Court affirmed a decision of the High Court as to the applicability of the Personal Injuries Assessment Board Act 2003 (“the 2003 Act�?) to actions against the Motor Insurers’ Bureau of Ireland (“MIBI�?).

Under the 2003 Act an injured person is obliged to apply to the Personal Injuries Assessment Board (“PIAB�?) for an assessment and, if necessary, a certificate, before issuing proceedings in court for the recovery of compensation.

Where the person has been injured by an uninsured driver or by a driver whose identity is unknown, the injured person may claim against the MIBI. The Bureau is, effectively, funded by all the insurers of motorists, in the Irish market.

The obligation to prove liability and loss remain, even though the MIBI is not “at fault�?.

The MIBI was not mentioned specifically in the 2003 Act, hence the doubt. The judgment makes sense; anything else would have been an anomaly. Indeed, in a very real sense the 2003 Act was intended to apply to the MIBI more than anyone or anything else; they are the insurance industry.

The 2003 Act is intended to benefit them.

We in Ireland are very unfashionable. We are the laughing stock of Europe because we use pencils to vote, the laughing stock of Europe because we might reject the Lisbon treaty and our Financial Regulation is a laughing stock.

Now, we risk being the laughing stock of Australia (and the UK in due course) because none of our lawyers have sold shares in themselves.

(Just to mention the topic is to expose us to derision.)

Have the lawyers not sold themselves already?�?

These reactions are unfair because they are based on unfair comparisons. Consider Slater & Gordon the Australian law firm.

Despite the wording of their (its?) website their principal business is litigation for the recovery of compensation for personal injury. This is a form of business that the Government and the Minister for Enterprise Trade and Employment in particular, have attempted to curtail at considerable loss to victims of personal injury as seen HERE and HERE and HERE.

The business that the government favours is the business of insurance. (Almost invariably the direction of the defence in personal injury litigation is given by an insurance company, in the name of the defendant.)

So, Slater & Gordon’s business model would not appeal to the investors in the Irish Stock Exchange.

So, what business model would work here in Ireland? Undoubtedly it will be the business model ultimately adopted in England and Wales. However, as noted HERE, there are growing potential and actual differences between the two jurisdictions which will probably ensure that our legal behemoths down the Liffey will not make it to the market.

It is far from obvious what money is.

That the price of gold has risen to an all-time high is evidence of this.

Of what real value is a piece of gold? It has some industrial use, but not much.
It endures over time, but basalt does likewise and, indeed, in the context of a human lifetime the endurance of gold is nothing outstanding; it shares that property with too many other substances. Why should it increase in value relative to any or all national currencies, as it has done?

It is in fact a reference point; the currencies have fallen in value relative to it.

Probably money is an economic notion more than a legal one. That notion is subject to change; consider e-money.
E-money can be encountered in a chip card which has been “loaded�? with “value�? and which can be used to discharge an obligation, limited to the value in the card. The possession of the card is sufficient to get the value of it. Significantly, the State need not, and usually does not, have any involvement in such e-money.

One theory of money, “fiat money�?, bases it on the State control of the monetary system and the issuing of notes and coinage. “Nominalism�? is an essential element of the State theory of money. Nominalism was recognized by Aristotle in the Nichomachean Ethics;

… money has been introduced by convention as a kind of substitute for a need or demand … its value is derived not from nature but from law, and can be altered or abolished at will�?.

It is a principle of Irish (and UK) law that the purpose of the award of compensation by the courts is to, insofar as money can, place the injured party in the same position as if he/she had not been injured.

The State theory of money is, potentially, at odds with that principle because nominalism disregards everything save the attributed value to the currency or State “unit of account�?. Nominalism disregards the changing value of the currency. It takes no account of inflation or depreciation.

The compensation principle is an expression of another principle; the need to do justice. The acceptance of Nominalism is, when it comes to compensation for injury, a breach of the requirement to do justice.

Unadjusted money value may in a period of inflation greatly benefit a wrongdoer. The wrongdoer may deprive a victim of value but, due to the effects of inflation, ultimately be obliged only to make restitution of something of lesser value than the benefit he/she gained.

The Book of Quantum of the Personal Injuries Assessment Board has a similar effect.
It sets out “values�? for some types of personal injury and in doing so clearly accepts the State theory of money and inherently accepts the principle of nominalism. In truth, the “values�? in the Book of Quantum are not fixed values; they change to a greater or lesser degree and the underlying trend historically is to have them depreciate in value, relative to everything other than the attributed value of the currency.

The UK courts have avoided the problem by affirming that the “value�? at the date of judgment is the appropriate value to determine proper compensation – Ascot Midland Baptist (Trust) Association v Bermingham Corporation (1970) AC 874. This approach involves taking account the value of the money; it takes account of the effect of inflation. A Book of Quantum does not.

It is worth noting that the UK Law Commission rejected the idea of the establishment of a “Compensation Advisory Board�? i.e. a UK PIAB.

The Plaintiff was a wages clerk employed in the Defendant’s bakery in Finglas. She was traveling to a canteen and passed a production area where cakes were being manufactured. There were crumbs and flour on the ground. She slipped on this and twisted her back in trying to maintain her balance. She was out of work for six months, had severe back pain for six months and less so for another six months. The defendant had advised workers “to wear sensible shoes�?.

Occasionally, a person suffers personal injury of such degree that they die of the injuries. If the injury is inflicted in circumstances where civil liability would lie in favour of the injured person, that is, where some person is at fault for the injuries, the injured person’s right of action for compensation for pain and suffering ceases with the death of the injured person.

However, in those circumstances, under the Civil Liability Act 1961, a right of action continues, on the death of the injured person, in favour of the dependents of the injured/deceased person.

The method for the assessment of damages will differ from those applicable to a claim for personal injuries.

Instead, damages are mostly confined to the award of financial loss to the dependents of the deceased person, arising from the death. Loss arising from the absence of income would make up, by and large the greater share of this loss. Funeral and travel expenses are recoverable.

There is also a modest award, with an upper limit of €25,394, for mental distress.

These actions are commonly called “fatal injuries�? actions.

The variation frequently seen in the sums awarded reflect, usually, the differing earning capacities of the deceased and the degree of dependence of the claimants on the deceased. A dead stockbroker will usually have been earning more than a deceased garbage collector. A young, highly paid stockbroker will possibly leave dependents behind whose loss will be greater because of the high earnings of the deceased and the degree of dependency on the deceased.

Some legal principles escape from the courts and enter the popular culture. “Every dog gets (is entitled to) one bite�? is such a “principle�?, albeit now mistaken, if it was ever true.

It arose because of the dubious division, in law, between “wild animals�? and “domestic animals�? for the purpose of finding liability for injuries caused by animals. The Law Reform Commission, in “Civil Liability for Animals�? remarked that

In scienter the distinction between wild and domestic animals is artificial, is not to be found in nature, and in terms of danger, does not correspond to the experience of professional animal keepers. For example, the keeper of Dublin Zoo expressed the opinion that all animals should be considered dangerous and declared that even rabbits can at certain times bite and be aggressive. Bord na gCapall expressed the view that care was always needed in handling horses (domestic animals) and that “all animals should be treated as ‘wild animals’�?

The false distinction led to a requirement on the Plaintiff, in the absence of other indications of liability, in actions arising from injury or damage caused by “domesticated�? animals, such as dogs, to show that the owner/Defendant knew of the mischievous propensity of the dog, or whatever, to injure persons [by biting, say].

In relation to dogs, in Ireland the position has been partially settled by Section 21 of the Control of Dogs Act 1986. The owner of a dog is strictly liable for the injuries caused by any dog attack on a person or livestock.

21. —(1) The owner of a dog shall be liable in damages for damage caused in an attack on any person by the dog and for injury done by it to any livestock; and it shall not be necessary for the person seeking such damages to show a previous mischievous propensity in the dog, or the owner’s knowledge of such previous propensity, or to show that such injury or damage was attributable to neglect on the part of the owner.

Perversely, livestock are more protected by this provision; it only applies in the case of a person if the dog attacks, but the livestock are protected regardless of the mode of damage.

PIAB applicants (i.e., personal injury victims) should take the long view and consider themselves fortunate, currently.

Cassius Dio (58.21.4-5) records that, due to a credit crunch in 33 AD:-

Tiberius then modified his decision regarding loans and gave one hundred million sesterces to the treasury, with instructions that senators should lend this money for three years without interest to those who needed it. He also ordered that the most disreputable of those who were bringing accusations against others should all be put to death on a single day. (emphasis added)