Practical Claim Issues
Role of Solicitors
Solicitors only may issue legal proceedings on behalf of others for reward. In theory, cases may be settled by non-solicitors, but the fact that they are not in a position to institute legal proceedings is likely to weaken their position. Ultimately, they may need to refer the case to a solicitor for the commencement of proceedings.
The claimant’s solicitor typically writes to the defendant asking him or her to pass on the letter to his insurer. He may correspond with the insurer requesting them to admit liability.
The insurers are likely to instruct solicitors from their panel at an early stage. It would be unusual for the insurers to admit liability at this early stage, irrespective of the circumstances. They may write a standard letter denying liability.
Evidence
There may be a dispute as to whether the facts are as alleged, whether they constitute negligence, or whether they caused the accident. The principal variable, in many cases, is the extent of the damages that arise. In many cases, liability is not an issue and the sole issue is quantum.
At the outset of the case, the claimant’s solicitor will gather evidence regarding the accident or matter in question and the extent of loss and damages. He will take a detailed statement from the claimant regarding the accident, its financial and related consequences and its effect generally on the claimant.
A medical report is required in almost all cases. Reports by appropriate consultants and specialists will commonly be required in accordance with the nature of the injuries concerned.
The claimant’s solicitor will seek witness statements and police reports where relevant. In some cases, in particular, in the case of industrial accidents, the location of the accident may be o be examined by an engineer or other experts.
He may seek documents such as P60 showing earnings, social welfare payments and documentary evidence of financial loss. He will almost invariably seek evidence regarding the extent of the personal injuries by way of one or more medical reports.
Where injuries are serious, the injured person or persons may be taken to a hospital for treatment. Hospital notes on a person’s condition on admission may be relevant in a personal injury claim.
Injuries Board
The Personal Injuries Assessment Board (PIAB) is an independent statutory body that deals with personal injury claims. All personal injury claims in (except for cases involving medical negligence) must be submitted to PIAB.
PIAB provides an independent assessment of personal injury claims for compensation following road traffic, workplace or public liability accidents. If the person you hold responsible for your injury (the respondent) does not want PIAB to assess your claim for compensation, you can take your claim to court.
On average, claims made to PIAB are assessed in just over seven months from when the respondent consents to have the claim assessed by PIAB. Claims are assessed using the medical evidence provided by the claimant or a report provided by an independent doctor appointed by PIAB.
Civil Proceedings and Injuries Board
Proceedings may not issue in most personal injury cases unless and until an authorisation issues from the Injuries Board. The Statute of Limitations is stopped while the claim is with the Board.
The case may be settled on foot of the Board’s assessment. If the respondent does not agree to an assessment by PIAB, or if either side rejects PIAB’s award, the claim can be referred to the courts.
The claimant is obliged to set out the particulars of the claim shortly after proceedings are issued. The Board must be furnished with the detail of the claim, including documentary medical evidence and evidence of financial loss.
PIAB assesses the claim based on the guideline amounts for compensation for particular injuries set out in the Book of Quantum or in the Personal Injuries Guidelines. If the claim is assessed before 24 April 2021, the Book of Quantum will apply, and if it is assessed on or after 24 April 2021, the Personal Injuries Guidelines will apply.
Prosecution
In road traffic cases, there may be a criminal prosecution for driving without due care and attention or careless or dangerous driving. The civil case is separate from and unaffected by the prosecution. What happens in the prosecution is not admissible as proof in the civil proceedings.
In practice, the result of the prosecution may be of great relevance and be influential on the insurance company’s decision in relation to its approach to the case. The insurers may hold a watching brief in the criminal case to see as to what happens in the prosecution. The insurers may provide legal assistance to the defendant in relation to prosecution.
Liability & Damages
The parties will generally have witness statements by prospective witnesses in advance so they know what their witnesses are likely to say. Non-cooperative witnesses can be subpoenaed. However, a party may not benefit from calling a witness under duress.
In industrial accident cases, an order may be obtained to allow access to the location of the accident if it is not voluntarily given.
In road traffic accidents, the evidence of the incident may be momentary. The Gardai may arrive at the scene and take pictures and notes in regard to the circumstances. It may be necessary to rely mainly on the recollection of the parties. CCTV may be available.
Commonly liability will not be an issue, and the sole questions in the case will be the extent of damages and loss. There may be a very significant difference between what the claimant claims and what the insurer, on behalf of the defendant, is prepared to accept as the proper measure of liability. There may be a significant difference in relation to issues of the extent and future likely extent of the injuries and the consequent financial and other losses.
Negotiation and Settlement
The process of negotiation may involve tactical behaviour. The insurer will seek to minimise the cost of the claim.
The two key elements are the probability of success on the issue of liability and the level of damages that might be awarded. If contributory negligence is a possibility, then this will be factored in.
A lodgement of an amount in settlement offered may be made in the court offices. A claimant who does not accept the lodgement and is later awarded a lesser sum in the hearing will be liable for the defendant’s costs from the date of the lodgement.
A lodgement is not an admission of liability. A claimant may refuse to accept the lodgement and then fight a case, failing narrowly to beat the lodgment. A substantial part of the costs may relate to the issue of liability. The claimant is nonetheless liable for such cost, notwithstanding the de facto admission of liability.
Practical & Costs Issues
Legal principles will not necessarily determine the amount of compensation. A range of other factors and probabilities will enter the equation.
The insurer may be in a stronger position in many cases. The claimant may be risk-averse while the insurer is risk neutral. The insurer is involved in settling cases on a continuous basis, whereas for the claimant, it is a one-off matter.
The claimant may wish to have the matter determined at an early date in order to reduce uncertainty and remove stress. If the claim is large, the claimant may not wish to risk a full trial and may settle for something significantly less than what might be obtained on a hearing.
The claimant, in many, if not most cases, will not be able to pay either his own costs or the defendant/insurer’s costs if he loses. Although costs might be ordered against a losing claimant, they may be difficult to recover in practice. If the claim is relatively small, a claim of relatively little merit may be settled on a nuisance value basis by the insurer due to the costs of defending it.
Insurance
The key feature of the modern system of civil liability is insurance. See generally the separate sections on insurance in relation to the various types of insurance and policies. The vast majority of claims arise and are taken in circumstances where there is insurance.
Insurance is mandatory in road traffic claims. It is mandatory in the United Kingdom in relation to an employer’s liability. This is not the case in the Republic of Ireland.
Some public sector entities self-insure or have arrangements in common for insurance. On account of their scale and the number of accidents affecting them, it may be more efficient for them to take claims on an ongoing basis.
The vast majority of personal injury claims are settled by the claimant by agreement with the insurance company on behalf of the defendant. Even in the small proportion of cases heard, the dispute usually relates to facts.
Settlements are based on a rational assessment of the probabilities as to what may happen if the case goes to trial.
Insurance Policies
A liability insurance policy is a policy of indemnity. The insurer agrees to insure the indemnified policyholder against the insured loss, in this case, legal liability to a third party. Ostensibly, the insurance protects the insured. In practice, it protects the third party who would be unlikely to recover in most cases if the defendant was uninsured.
The fact that the policy benefits the insured rather than the injured third party has practical significance. Issues arise when the insured goes bankrupt. In England, more general legislation effectively assigns the policy’s benefit to the injured party. In Ireland, the legislation is more limited.
The insurance policy may be rendered void by the fraud and misrepresentation of the insured. Accordingly, an injured claimant may be denied recovery because the insured may not, in fact, be insured, despite the presence of a policy. The Motor Insurance Bureau will likely cover the liability in this instance.
Comprehensive motor insurance, including first-party cover or stand-alone first-party cover, which covers the insured in respect of injury to himself or loss of property, is not compulsory. First-party insurance may compensate a driver both for his car and personal injuries due to his own negligence or that of another.
Multiple Policy Issues
A person may have a claim against a third party and against his own insurer in some cases. Principles of insurance law prevent double recovery.
The position becomes complicated if each party is contributorily negligent. In this case, X may recover from Y in respect of part of his loss and from the own insurer in respect of his contributory part and vice versa.
To avoid situations of this type which would be wasteful and inefficient, insurers sometimes enter “knock for knock” agreements. Under the agreements, each policy is, in effect become, a comprehensive insurance policy in these circumstances. The arrangement is presumed to operate on a neutral basis in the long run, save administrative costs and reduce inefficiencies.
Role of Insurance
In theory, the existence of an insurance policy should have no impact on the outcome of a case. Indeed, it is prohibited to disclose whether there is insurance coverage, as it is not relevant to the facts in the issue and might prejudice the court’s determination.
This was a firm rule in jury cases and was presumed to survive the removal of juries in civil cases in the late 1980s. However, in practice, the court will be able to assume in many types of cases that insurance is in place.
Insurance facilitates compensation of a person who has suffered a wrong without imposing undue hardship on the defendant. It is argued that a finding of liability is more likely when there is insurance, as judges are subconsciously influenced by this consideration. Despite what is commonly perceived to be the reality, the courts do not formally find liability on the basis of who is best able to insure. Liability is articulated in terms of the law of negligence.
Insurance law in practice has sought to minimize the grounds on which insurance may be avoided. This recognises the reality that the insurance is essential for the benefit of the third-party injured person. Accordingly, there is a public policy interest that insurance policies should not be avoided on insubstantial grounds.
The Irish Road Traffic Act recognises, to a limited extent, the possibility of a suit against the insurer where the insured is insolvent. This is severely limited, relative to much wider English legislation.