Our view is that without proper representaion a claimaint is walking into a lion’s den when engaging with PIAB. The system for resolving personal injuries claims in Ireland is currently broken. We would probably not have said this 24 months ago. We would have said that if your injuries were minor, if you did not have any huge loss of income, and if you were fully better after six or twelve months the Personal Injuries Assessment Board (PIAB) was likely to make a reasonably hand of your claim. This is not currently the case, and we would advise any person injured in a Road Traffic Accident, Workplace accident, or injured in some other manner to approach the system with a great degree of caution.
On their twitter account PIAB describe themselves as “the independent Irish state body that fairly assesses injury claims”. It also runs a national media campaign promising “Similar compensation, faster resolution, fairer for all”. We consider both of these statements to be untrue.
The introduction of the revised Judicial Council guidelines in 2021 were met with faux disappointment by insurance company representatives. While they had got what they wanted; they wanted more. The most recent report from PIAB suggests that claim values are down by 40% or more. Our experience however is more nuanced that that. In some cases the awards are down significantly more perhaps by 80% and furthermore the claimants experience has changed dramatically from something that seemed fair to a more aggressive and more anti claimant experience.
The propaganda we have heard from the insurers and lobby groups is such that every claimant is a likely fraud; and this is simply not true. Our experience is quite the opposite. Many of our clients are reluctant litigants, and often only approach a solicitor as a last resort. For every fraudster who manufactures a claim, there are hundreds badly injured at the hands of drunk and dangerous drivers, dangerous work practices, and careless property owners, just to name a few.
We would strongly urge anyone who has been injured in a claim to contact a solicitor, now more than ever. We would suggest that PIAB cannot any longer be trusted as an independent body, and cannot be trusted to fairly implement the Judicial Council guidelines, as flawed and all as they may be.
Why is PIAB failing to deliver?
Judicial Council Guidelines
These guidelines were introduced by the Judicial Council in 2021 after some hesitancy. They were introduced largely as a result of lobbying by the insurance industry and promises (yet to be realised) of lower insurance premia. Much can be said about these Guidelines and whether or not they will stand the test of time and legal scrutiny, however as of now is it clear that any person accepting an award from PIAB needs to be properly advised as to the basis on which PIAB is assessing claims and if it is wise to accept the assessment. Given some assessments we have seen it is difficult to advise any claimant to accept the award because they are so low to begin with.
The Knowledge deficit in the PIAB process
Most people can tell the difference between something that is cheap and of poor quality, and something that is good value. PIAB falls into the former category. When the Courts assess a case they generally have the benefit of doctors from both sides, they may have accountants to assist in calculating loss of income, an actuary for future losses, a vocational rehabilitation consultant to assist the Court in determining the employment prospects of a person going forward. The Court will be able to call on the opinions of an injured party’s doctors and most importantly an impartial and highly skilled Judge will be able to adjudicate on the facts. PIAB do not fund any of this, so must make do with a bare report from a GP and such other medical reports as they may fund. No real effort will be made to calculate loss of earnings, and future losses are rarely considered.
While we do not know the full skill set of all PIAB assessors, we know many are not qualified lawyers, and certainly we know they do not have the depth of experience and training a Judge and the experts who assist him or her will have. A quick review of Linkedin indicates many come from the Insurancre company background. In simple terms PIAB are not comparing like with like when they say (as they did on the 19th November 2021): “The recent data report of @centralbank_ie on motor insurance costs shows that legal costs associated with settling personal injury claims through litigation were €16,064 vs a far lower €841 under PIAB. @PIABIreland system legal costs were just 5% of those in costly litigation.”
There are cases where a simple desktop assessment is a good idea for all parties, but PIAB seem to be failing in this regard also by simply getting it all wrong and assessing cases too low.
Worse than the knowledge deficit noted above we have had experience of clients being harangued and harassed by medical professionals in the context of what should be an impartial assessment funded by the PIAB. We have also experience of individuals being sent for a 4 hour round trip to see a PIAB doctor during working hours. The most regular occurrence however is that no real effort is made by PIAB to assess a claimant’s medical history. Like the cowboy builders, they do a cheap job, but not one that stands up to scrutiny.
PIAB is very slow for what they do. An insurance company gets three months before they even need to engage with PIAB and then the Board has a further nine months to assess the claim. There is no reason why a full 90 days should be given to a respondent to think about what they want to do. When PIAB does eventually get going in seems that 6 months is spent doing nothing, and the assessment is simply made in the final weeks of the process. Given the paucity of analysis applied by PIAB it should take no more than 90 days from beginning to end.
They sometimes try to assess cases they shouldn’t
The Personal Injuries Assessment Board Act 2003 (as amended) recognises the limitations inherent in the PIAB process. Section 17 of the Act allows it is recuse itself in a number of situation, such as where cases are complex, where there is psychological harm, where aggravated or exemplary damages may be appropriate, or where the respondent does not intend to engage with the process. The only situation where the board regularly recuses itself in a timely fashion is where an respondent insurance company in effect tells it to “back off”.
Many claimants will find their case delayed for months before an inevitable Authorisation issues, or worse find themselves involved with an assessment procedure doomed to achieve the wrong result. In both cases PIAB adds years to the claimant getting a reasonable settlement.
PIAB is too pro insurance company
Insurance companies and their affiliates are not afraid to engage in sharp practice. With one insurer alone in the last month we have had the following issues;
- Axa Insurance moved a car which was involved in an accident in Cork to Kerry for “storage” without the owner’s consent and will not made any assessment of its value even though there is no issue with liability. We have advised the client in that case to report the vehicle as stolen. The insurer has valued the car at half the actual replacement cost.
- Axa Insurance have refused to compensate our client for a written off car worth approximately €30,000, despite their insured being at fault and in the process of being prosecuted by An Garda Siochana. No reason for this is given. PIAB will not assist in any way. Our client has had to buy an alternative vehicle while the Board do nothing,
- Axa have ignored 4 letters seeking a resolution of a small (under €1000) amount of damage to a car, again even with the benefit of CCTV showing their insured at fault. Again, no reason is given.
PIAB will not help a claimant fight back against the sharp practice and malignant behaviour many insurers engage in. PIAB is mandatory for claimants, but optional for insurers, and unfortuanely insurers simply use PIAB as tool in their arsenal to get favourable settlements from claimants.
If you have been injured, what should you do?
You should speak to a Solicitor who is experienced in litigation matters. Most will give a fair assessment of your case, they will advise the charges upfront and they will be thoroughly transparent. Solicitors are not allowed to charge a percentage of your award for contentious work, and this is for the best. Solicitors are professionals in dealing with these matters and they will help you get the best result possible; and if that upsets insurers and those who enable them, then all the better.
Finally this is not an advertisement for O’Dowd Solicitors, but simply an honest effort to give a differing opinion to the Insurance company sponsored propaganda that has permeated our media outlets and is being accepted in some quarters as “fact”. We do not condone insurance fraud of any nature, but we strongly believe that a person injured at the hands of another is entitled to be compensated properly without being victimised and maligned by multi billion euro vested interests that care about nothing other than making substantial returns for their shareholders.