Since the introduction of the Personal Injuries Assessment Board Act in 2003 (The PIAB Act) and the Civil Liability and Courts Act in 2004 there has been a huge change in the procedure for making a claim for personal injuries caused by assault.
What is the Personal Injuries Assessment Board (PIAB)?
The Personal Injuries Assessment Board (PIAB) is an independent statutory body that now assesses damages in personal injury cases. Under the Act, all personal injuries cases except for those cases excluded by the Act must now be submitted to PIAB. Cases that are automatically excluded from PIAB include medical negligence actions and constitutional actions and these cases are commenced in the courts as before.
How does PIAB work?
Since the introduction of PIAB, the first step in claims for compensation for injury is to write a letter of claim to the person(s) responsible within 2 months.
The next step is to obtain a medical report from the treating doctor and to complete a PIAB application form. Once the claim papers are sent to PIAB, they will contact the person or organization against whom the case is being made and will seek that person?s consent to an assessment of damages. That person or organization (called ?the respondent?) must pay the PIAB fee of ?1,050 before PIAB will proceed to assess the case. It is intended that the respondent will consent to an assessment where liability is admitted. If the respondent does not consent to an assessment at the outset, PIAB will authorize the commencement of legal proceedings by the injured party and PIAB will from then on cease to have a role in the matter. Any assessment at PIAB will be made by reference to what is called the Book of Quantum. This is a book that aims to standardize the amount of compensation payable in respect of pain and suffering caused by various types of physical injuries. It sets out, on a graded scale, the amount of money payable to an injured person depending on the severity and duration of the injury. It covers many common types of injury , but not all types of injury are listed. If an assessment is made and either the claimant or the respondent does not accept it, the claimant will be authorized by PIAB to commence court proceedings as before and again, PIAB will from then on cease to have a role in the matter.
Are Assault cases and Psychological Injury cases dealt with by PIAB?
Section? 17 of the PIAB Act provides that the Board ?shall not be required to arrange for the making of an assessment? in certain types of case. In respect of these cases the practice appears to be to submit the case to PIAB first, and PIAB will then decide in its discretion whether it will handle the case or whether it falls outside its remit. If PIAB decides not to handle the case, it will authorize court proceedings to be issued in the normal way.
One type of case covered by Section 17 is where the relevant claim arises out of a trespass to the person, ?because the making of an assessment of the claim by the means to which assessors are limited to employing by [the] Act [ie the Book of Quantum] would not respect the dignity of the claimant?. A trespass to the person would include assault, battery, and other wrongs. Again, it is for PIAB to decide whether it will handle the case or not, and PIAB maintains that each case is dealt with on its own particular merits.
It would be interesting to see what would happen if a claimant wished to assert his or her right to a jury trial (the right to a jury trial still exists in the case of intentional trespass to the person). PIAB may argue that it is merely postponing that right by assessing the case, as it would be open to the claimant to go to court after an assessment was made by PIAB. However, the fact that a claimant would be delayed in accessing his or her rights could be a ground for judicial review.
Another type of case covered by Section 17 is where the injury or injuries alleged to be sustained consist wholly or in part of psychological damage the nature or extent of which it would be difficult to determine by the means of assessment to which the asssessors are limited to employing by the Act. Others include cases where aggravated damages* are bona fide being sought as part of the claim. With reference to psychological injuries, if these are in any way significant, it is difficult to see how PIAB could deal with the case, as the Book of Quantum (discussed above) only deals with physical injuries.
The Civil Liability and Courts Act 2004
The Civil Liability and Courts Act 2004 made a number of additional reforms to the manner in which personal injury cases are handled.
Some of the main provisions are discussed below:
An important new provision is Section 7 of the Civil Liability and Courts Act 2004 which came into effect on the 31st March 2005. This Section reduced the time period to commence personal injury claims arising as a result of negligence or breach of duty (including medical negligence claims) from 3 years to 2 years. Where the relevant date in respect of a cause of action falls before the commencement of Section 7 (31/3/?05), the Statute expires 2 years from the 31st March 2005 or 3 years from the date of the accident/ ?date of knowledge?**- whichever occurs first. The Limitation period in respect of assault or battery cases remains at 6 years, but cases in relation to assaults at work may include a claim of negligence against an employer, and therefore it is important to instruct your solicitor at the earliest possible stage.
Section 8 of the Civil Liability and Courts Act 2004 came into force on the 20th September 2004. This section provides that a claimant in a personal injuries action must now issue a letter of claim (i.e. notice providing details of? the nature of the wrong alleged) to a respondent within two months of the cause of action or as soon as practicable thereafter. Failure to do so, without reasonable cause, may have serious consequences including implications in relation to costs. A solicitor would be in a position to draft the appropriate letter or letters of claim on behalf of a claimant.
Section 22 of the Civil Liability and Courts Act 2004 (commencement date 20th September 2004) provides that the court will have regard to the Book of Quantum (discussed above)? in assessing damages but may take other matters into account.
Section 25 of the Civil Liability and Courts Act 2004 (commencement date 20th September 2004) deals with false evidence and makes it an offence to gives false evidence or cause false or misleading evidence to be given.
Section 26 of the Civil Liability and Courts Act 2004 (commencement date 20th September 2004) deals with fraudulent actions. If a plaintiff knowingly gives false or misleading material evidence then the court shall dismiss the plaintiff?s claim unless this would result in an injustice being done.
Section 28 of the Civil Liability and Courts Act 2004 (commencement date 31st March 2005). This provides that undeclared income for tax purposes shall not be taken into account for the purpose of assessing damage unless the court considers it would be unjust to disregard it.
The legal landscape in relation to personal injuries cases has changed dramatically in recent years. Although some of the changes are welcome, the process is now regulated in more detail and the rules are more intricate. With the advent of PIAB and the Civil Liability and Courts Act 2004 there is now
An extra layer in the process in some cases although in others cases are dealt with more quickly with early decisions on liability
A shorter time within which to initiate claims
Potential costs penalties for delay in sending an initial letter of claim in respect of cases that go to court
An attempt to standardize damages for certain types of injury
* Aggravated Damages are increased damages that are payable in cases involving such elements as the? manner in which the wrong was committed, the conduct of the wrongdoer afterwards, and the consequent? added hurt or insult to the plaintiff
** The ?Date of Knowledge? has a technical meaning in this case which should be discussed with a solicitor.