The Personal Injuries Assessment Board (PIAB) was inefficient, the Minister for Enterprise Trade and Employment has implied.
Of course he may have been guilty of a solecism when he declared the purpose of his new Act, amending the Personal Injuries Assessment Board Act 2003, was to ensure the efficiency of PIAB.
He probably meant he wanted to ensure its effectiveness. To do this he has placed a further trip wire in the path of injured persons seeking compensation for their personal injuries.
Now, if an injured person declines to accept the judgment of PIAB as to the correct and fair value to be placed on the personal injury and, instead, seeks to have that assessment made in open court following a trial, the Minister has provided that s/he will not be awarded legal costs against the unsuccessful defendant if the court award is less than the PIAB assessment.
What are the problems (statutorily enforced) that the Government has imposed on such plaintiffs?
1. Persons injured (bodily or mentally) by the wrongful action or inaction of another have been deprived of their constitutional right to apply to the courts to adjudicate on their entitlements to compensation for such injury without first submitting their claim to PIAB for an assessment by it.
2. Those persons must bear the cost (to them) of such submission and assessment.
3. Such injured persons now have just two years to commence legal proceedings against the wrongdoer who caused the injury. The claim will be statute barred on the expiry of this time. Previously it was three years, itself a tight deadline.
4. If a letter of claim is not written to the proposed defendant (the wrongdoer causing the personal injury) within two months of the incident causing the injury, the court may be asked (by the wrongdoer; who else?) to deprive the injured person of some or all of his/her accrued legal costs. (The general rule, still extant for property developers, banks, insurance companies etc., is that âcosts follow the causeâ? â the loser pays). In short, having been found guilty of the cited wrongdoing, the defendant will ask the assistance of the court to avoid paying some or all of the costs incurred by the plaintiff in bringing the claim.
5. A personal injury plaintiff must swear an affidavit verifying the truth of the facts of the personal injury summons issued by the plaintiff.
6. The plaintiff is now obliged to express his/her claim by the issue of a personal injury summons. The form of this dictates that the fullest details of the claim must be pleaded (and therefore be ascertained and known) within the two year limitation period.
7. If the plaintiff, although successful in the litigation, does 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 and the defendant will be entitled to ask the court to refuse an award of costs in favour of the plaintiff.