Source: O’Brien -v- Personal Injuries Assessment Board (2008) Supreme Court 19th December 2008
In a recent Supreme Court decision delivered by Mrs. Justice Denham it was held that if an applicant brings a case to the Personal Injuries Assessment Board (PIAB) now the (Injuries Board) he or she is entitled to have a legal representative.
By way of background, the case came as an appeal by PIAB to a ruling of the High Court which upheld the right of a claimant who had lodged a claim with PIAB to be represented by a solicitor in dealing with the Board. The case arose when the applicant was injured at work. When he returned to work he claimed he was unable to work at the same level as previously and as a result he was at a financial loss, and that he suffered personal injury.
The applicant had instructed his solicitor to lodge an application form with PIAB on his behalf and had signed a “confirmation and authority” form with his solicitor so he could act on his behalf and which his solicitor then sent to PIAB.
When the form was lodged with PIAB, the Board instead of writing to his solicitor wrote to the applicant Mr. O’ Brien himself, which was neither what he wanted nor what he had instructed the Board to do.
In this case the applicant had difficulties in getting a medical report, and he had serious concerns that his case might be statute barred (i.e. not brought within the three year timeframe then allowed, now two years in most cases). His solicitor wrote to PIAB indicating that the Board was not acting in accordance with the wishes of his client by refusing to deal with him.
This did no deter the Board who phoned Mr. O’ Brien directly indicating that it would not deal directly with his solicitors, but indicated that it would provide copies of its correspondence only with Mr. O’Brien. He was also told that his case could not be registered without a medical report. This had serious consequences for Mr. O’ Brien as his claim was nearing the time when it needed to be registered, and he felt he would not be in a position to process it unless he could act through his solicitor who had the necessary skill and knowledge to protect his interest in the matter.
Through his solicitor he then brought judicial review proceedings in the High Court seeking an order to stop PIAB interfering in his solicitor/client relationship. Mr. Justice MacMenamin held in the High Court that there was a right to legal representation in administrative procedures when the matters in issue might have serious consequences or impinge on a party’s rights. He also found that PIAB was in breach of Section 7 of the 2003 Act for refusing to deal with a solicitor
The Supreme Court also said that “legal representation is a right of special importance in common law jurisdictions where the legal system is adversarial. Any restriction of the right to legal representation would have to be addressed clearly in legislation”.
Clearly the above case would appear to demonstrate that PIAB would prefer if solicitors were not involved in advising claimants who bring claims before the Board. One has to ask why?
In the light of PIAB’s apparent wish to deal with applicants without their legal advisors one indeed has to query its motive? The Board is well aware of the importance of any applicant getting good legal advice but would prefer if the applicant did not have the benefit of it.
This case shows the importance in our view of getting proper legal advice from a solicitor in initiating any case with the Board for personal injury. We would strongly suggest to any applicant who wishes to bring a case that they do so only when they have made contact with a solicitor.
We often advise our clients to refuse offers of compensation made by PIAB for a variety of reasons. We have found in practice that on many occasions PIAB make offers of compensation to claimants when the medical evidence to support the offer is not in our view sufficiently complete, or indeed where there has been no final medical prognosis. In many of these cases the claimants invariably go on to subsequently receive higher offers of compensation either through negotiations conducted by us with an insurance company on their behalf or through the Courts.
A word of caution; where an unsuspecting claimant, or a claimant without adequate legal advice, accepts an offer of compensation from the Board prematurely and continues to suffer from his or her injuries into the future, there is in such circumstances generally no prospect of seeking further compensation, and the claimant is stuck with the original award.
Finally, the firm of Aidan T Stapleton & Company has for many years successfully acted for Plaintiffs throughout Ireland who consult with us with regard to various types of accidents. In the main these consist of industrial accidents, accidents at work, road traffic accidents, road traffic accidents causing death, road traffic accidents causing serious personal injury, slip and fall accidents in public places, accidents abroad on holiday, and medical negligence cases, though not exclusively confined to the above.
As our firm also acts for both Plaintiffs involved in accidents, and for Insurance Companies representing the interests of Defendants, we are very well placed to give appropriate and meaningful legal advice to Plaintiffs who consult with us so that their interests are properly represented.
If we can be of any further assistance then please do not hesitate to contact us on 01677939 or e-mail us at email@example.com