In Ireland, in the event of injury, proper compensation can be recovered only by consulting a solicitor. There are many solicitors in Ireland competent to represent a claimant in most personal injury cases.
The existence of the Personal Injuries Assessment Board (“PIAB”) should not distract from the need to prepare for the potential issuing of proceedings in court to recover compensation.
If the proper steps are not taken in timely fashion there may be an unsatisfactory ending to the efforts to vindicate your rights. The fact that most personal injury litigation ends satisfactorily, more or less, for plaintiffs, may conceal the fact that the difficulties facing a plaintiff are often considerable. They are so significant that the claim may never become a lawsuit.
Only a very small proportion of lawsuits are commenced in the absence of knowledge of the necessary evidence that will entitle the plaintiff to succeed. The spur to commencement of litigation is therefore, knowledge. Without the knowledge of the connection between the injury and the defendant there will be no, or no sufficient, evidence. Without the knowledge of the existence of the evidence, it cannot be gathered.
In addition to knowledge, speed is often required. A solicitor should be consulted as soon as possible. With delay, the location of the accident may change. In workplace accidents workers’ safety representatives should be prepared, on behalf of injured companions, to collect items of evidence immediately after an accident at a workplace.
The collection of the evidence should be approached as though a report were to be written. Date, time, location, lighting, weather (if outdoors) should be noted. Persons present or attending after the accident should be noted. Nothing should be moved until measurements are made and samples (if appropriate) taken. If machinery is involved, the registration number or other identifying mark of the machine should be noted. If possible, photographs of the scene should be taken from as many locations as possible. If samples of substances are taken, (carefully!) they should be placed in glass bottle containers with screw caps and luggage tags attached for identification. It is not always possible to know what evidence is required on behalf of the injured worker at such an early stage of the business, therefore the emphasis should be on thoroughness.
Instructing the Solicitor
The instructions to the solicitor need not be given personally by the injured person. The spouse or other family member of the injured person may give the instructions on behalf of the victim. They should consist of positive confirmation that the solicitor is to act for the victim and to do what is proper and reasonable to secure compensation in due course.
The solicitor will usually hire technical expertise, often a consulting engineer, to attend at the scene of the accident. The preliminary work of the safety representative in gathering evidence will be very useful at this point.
The solicitor is often presented with a difficult decision when the time comes to issue proceedings. The actual value of a case or, put another way, the amount of reasonable compensation which should be paid to the injured worker is not easy to assess even for experts at the final stages of the proceedings. It is doubly difficult at the beginning. Yet, this unknown and unknowable, sum of money determines whether the proceedings should be issued in the High Court, the Circuit Court or the District Court. This issue is called “jurisdiction”.
Jurisdiction
For civil matters (as opposed to criminal matters) the hearing of cases is apportioned between:
(a) The District Court (maximum jurisdiction EUR6,348.69 compensation)
(b) The Circuit Court (maximum jurisdiction EUR38,092.14 compensation)
(c) The High Court (unlimited jurisdiction )
(d) The Supreme Court (appeals only)
From the above it can be seen that if compensation in excess of EUR38,092.14 is appropriate the proceedings should be in the High Court. If the compensation falls in the range EUR6,348.6 – EUR38,092.14, it should be in the Circuit Court and below EUR6,348.6 it should be in the District Court.
Jurisdiction has a geographical element as well. In the Circuit and District courts the case should be taken in the court having jurisdiction over the place where the accident happened or where the Defendant resides.
Commencement of Proceedings
The solicitor commences by issuing an originating document. In the High Court this is called a Personal Injury Summons, in the Circuit Court a Civil Summons, and in the District Court a Civil Process. This contains a brief account of the facts of the accident and a detailed account of your allegations of negligence or whatever legal principle you base your claim on and also a general account of your injuries A copy of this is served on the Defendant.
The Defendant is then at liberty to enter an appearance in the relevant court office, or not, as he/she chooses. If no appearance is entered in the permitted time, the Plaintiff is at liberty to forthwith apply to the court for judgement in default. In short, you the Plaintiff win by a walk-over if the court gives judgement in your favour.
Usually an appearance is entered. After the entry of appearanc, the Defendant is at liberty to serve a defence, or not, as he/she chooses. If this is not done, you, the Plaintiff are at liberty to apply to the court for judgement in default. Again you have an opportunity to win by a walk-over.
In reality, very few cases are won on a walk-over and it may be very bad news if it happens to you. It usually means that neither the defendant nor any third party, such as an insurance company, cared whether you got judgement against them or not. This will be the case if the defendant is an insolvent company or is a person of no property and in either case is uninsured. Currently, employers’ liability insurance is not compulsory, unlike motor insurance. It is relatively easy for an insurance company to refuse to indemnify because of some breach of condition of the insurance.
Pleadings
Delays in getting medical reports slow down the exchange of pleadings and indeed the speed at which the matter may be brought on for trial.
Your injuries may not have settled down. That is, you may not have fully recovered, or the surgeon may feel that further adverse sequalae (bad consequences) will appear in the future and may be investigating this aspect of the matter.
If the defendant has or should have insurance cover there may be difficulties about ascertaining the extent or existence of this, and it may be prudent to put off the hearing of the action pending clarifying these matters.
The defendant may be deliberately delaying the hearing.
You, the plaintiff, may be careless of your own interest and not have furnished your solicitor with a proper account of the claim, or receipted accounts for payments made by you, recovery of which is sought from the defendant.
Assuming things run their usual course the defendant will serve his defence and you, the Plaintiff, will be at liberty to set the action down for hearing. When this is done in the Circuit Court in Dublin a date for the hearing is immediately assigned to the case. Depending on which Circuit the action is being taken in, anything up to eight or ten weeks may elapse before the hearing of the action. (The circuit is an administrative district roughly based on the four provinces). In the High Court in Dublin, following the setting down of the action it is possible to get a hearing date approximately six to eight weeks later.
Negotiation
If the opportunity arises the solicitor will negotiate on your behalf and help to achieve a settlement of the case before it comes to court. The solicitor will arrange medical examinations so that doctors’ reports are furnished, allowing your lawyer/s to assess the value of your case in relation to your personal injuries. Communications by you to your solicitor are privileged, that is, they may not and will not be divulged without your permission.
The solicitor should notify you to the best of his/her judgement of the prospects of success or otherwise if the action were to come on for hearing before a judge. The solicitor will frequently, in occupational injuries cases, arrange an inspection and report by an expert (such as an engineer). The evidence to be given by this expert may well determine the outcome of the case.
More about Pleadings
In order to fully define the ISSUES between the parties, PLEADINGS are exchanged between the parties. These pleadings concisely set out, in the case of the plaintiff, the wrong alleged to have been done by the defendant to the plaintiff; the loss alleged to have been suffered through that wrong; and the consequences thereof.
In the case of the defendant, his pleadings are intended to show what part of the claim of the plaintiff he admits or denies. What he does not deny is taken to be admitted, so frequently plaintiffs are shocked and surprised to see certain denials in defendants’ pleadings. They sometimes deny the undeniable! However, these are for the purpose of putting the plaintiff on full proof of those matters in court when the case comes for hearing. Even where the plaintiff will have no problem establishing the defendant’s liability, this issue is, often, still left to be proved by the plaintiff as a tactic of negotiation.
Statute of Limitations
There is a two year time limit within which proceedings for personal injury actions must (usually) be issued. The time begins to run from the date the injury was suffered. Thereafter the claim is barred under the Statute of Limitations 1957, as amended, and effectively lost. No lay person should ever make an uninformed decision on a question involving the Statute of Limitations. No lawyer should do so without considerable investigation of the matter. There are exceptions for infants and persons who do not, and cannot reasonably, know either that they have been injured and/or the identity of the person who injured them.
Damages
Damages is another name for the compensation you may be entitled to in order to make good your losses.You are in law obliged to minimise your loss. If you are injured you will only be allowed your loss of wages or income for the minimum period you would have been entitled to remain off work, i.e. for as long a period as your doctor so certifies.
Damage is divided into two categories: GENERAL DAMAGES, which is a sum of money given to a plaintiff which in the estimate of a judge represents – insofar as money can – the proper compensation for the plaintiff’s personal injury. SPECIAL DAMAGE is all other damage flowing from the defendant’s wrongdoing and normally and in principle fully ascertainable. Hospital expenses and loss of wages come under this heading. COMPENSATION is the total of general and special damage. The intended principle is that you should be put in the same position, insofar as money can, as you were before the wrong was suffered. Interest on the compensation only runs from the time proceedings are issued. In practice, such interest will only be quantified if the case goes to a hearing.
Settlement
Most claims are settled, generally before setting down. Of those that go to court, most are settled about the time the defendant should or has filed his/her Defence. The majority of the rest settle “at the door of the court”. There are a number of reasons for this. Part of the pleadings may have involved the making of a LODGEMENT by the defendant. This may be accepted by the victim and that is the end of the dispute.
The court system could not deal with a situation where every case needed a hearing. It is cheaper for a defendant to settle before costs of a hearing are incurred.
If, in the opinion of the defendant, you are making too much of your loss or injury the defendant may calculate that the stress and pressure of an imminent court appearance can make the defendant’s offers appear more reasonable or attractive. Conversely, the defendant and his advisers may themselves increase the offer under the same stress and pressure.
(TO BE CONTINUED)…
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