The Personal Injuries Resolution Board Bill 2022 (Bill) proposes to amend the Personal Injuries Assessment Board Act 2003-2019 to increase the number of personal injury claims settled through PIAB. The substantive proposed changes are:
1. The option of mediation as a means of resolving a claim
This proposal is the predominant feature of the Bill. Mediation is defined as “a confidential, facilitative and voluntary process…to reach a mutually acceptable agreement to resolve the relevant claim”.
Under the new proposals, the parties will be asked to consent to mediation and, if mutually agreeable, it is envisaged that the Personal Injuries Assessment Board (PIAB) will facilitate mediation via a mediation officer appointed by them.
It is intended that the mediation process will operate in conjunction, but separate, to the assessment process. This means that PIAB employees would not act in the assessment and mediation of the same case. It is expected that mediation would not affect the current timeline for assessment of a claim. This means that PIAB will remain obliged to assess claims within 9 months of confirmation of consent to the assessment process. An extension of 6 months is allowed under exceptional circumstances only.
Suggested timeframes for the various stages of the mediation process are awaited e.g. the period given to:
- a defendant to consent to mediation
- appoint a mediator
- a mediator to furnish his report, and
- furnishing documentation as between PIAB and the parties.
The Bill proposed that under mediation, the parties would be free to be represented by a legal advisor or obtain independent legal advice if they so wish.
The Bill is silent about who would ultimately be responsible for the costs of an unsuccessful mediator/mediation. Would the costs of any mediation be apportioned where mediation resulted in an agreement on the apportionment of liability between the parties?
This is an interesting proposed addition to the PIAB process and would represent the first involvement PIAB has had with the issue of liability. It would be very important to assess who the proposed mediators would be and what qualifications they would hold.
2. Extension of powers to cover assessment of psychological injuries, more complex injuries and those taking longer to resolve
Traditionally, the PIAB has not assessed claims consisting wholly of psychological damage as these had not been quantified in the Book of Quantum. However, the Personal Injury Guidelines make provision for the assessment of injuries of a psychological nature. The Bill aims to increase the number of personal injury claims that can be resolved through PIAB by including these types of claims not previously assessed by them.
Under the current system, PIAB have a maximum statutory timeframe of 15 months within which to assess any claim. With claims involving more complex injuries or injuries with a potential long-term prognosis that cannot be determined within this 15 months’ timeframe, there is no alternative but to release the claim to be pursued through the litigation process.
In those circumstances, the Bill now proposes an extension of up to 2 years beyond the current maximum statutory period of 15 months.
It remains to be seen how many cases might fall within this umbrella and whether an extension of 2 years is going to be of any benefit if the claimant is facing an undetermined long-term prognosis.
3. Costs consequences for claimants
The new Bill will remove judicial discretion in cases where a claimant rejects an award from PIAB but fails to get a higher award in court. The Claimant will now be faced with paying their own and the defendant’s costs in defending the litigation. This will no longer be at the discretion of judges.
With the introduction of the Personal Injury Guidelines, a claim that has been assessed by PIAB but then proceeds to court will be considered by the courts using the same criteria. The Guidelines create a mandatory obligation upon the judiciary to state his or her reasons for departing from the Guidelines.
This is a welcome development from a defendant’s perspective. The narrowing of the court’s discretion regarding costs increases the incentive for resolution of the claim within the procedures offered by PIAB, thereby reducing the number of claims proceeding into litigation.
4. Provision to seek proof of identity and disclosure information relating to offences
The Bill requires claimants to supply their PPSN to the Board to enable verification of identity. This is intended to reduce potential for identity fraud and ensure accuracy in relation to the order to pay and payment of resolved claims. PIAB will continue to engage with the Department of Social Welfare on this.
The Bill makes further provision for PIAB to report suspected offences such as fraud to An Garda Siochana.
5. Change of name
The Bill also proposes a name change from the Personal Injuries Assessment Board to the Personal Injuries Resolution Board. This is reflective greater emphasis on their proposed increased function as a dispute resolution forum.
There is no doubt that mediation has the potential to offer a speedy non-adversarial approach. Given it is a voluntary process, it will be interesting to see the number of claimants and equally defendants that will chose to avail/consent to the optional mediation.
Some concern has been voiced by practitioners that the introduction of mediation might have the opposite effect and create additional delays or add additional costs to the PIAB process by effectively adding another layer to the existing system.
At present, the procedure for covering the cost of mediation together with the actual expected costs of mediation, including the cost of legal representation on behalf of the parties, remains unknown. Accordingly, it is currently unclear whether the intended significant reduction in costs will actually be achievable when the entire cost of the mediation is factored in.
For more information, contact a member of our Insurance & Risk team.
The content of this article is provided for information purposes only and does not constitute legal or other advice