Compensation
Claims
Frequently Asked Questions
Who is to blame in an accident? When
can I claim?
Who is to blame? More details.
What about motorcycles/motorbikes?
Can I sue where I am injured from a
Slip and Fall or Tripping Accident?
What if I lose my Case?
How long will my accident claim case
take?
Do i need to go to court for accident
claim?
What should i do after accident?
Should i attend hospital after accident?
Should i return to work after accident?
How do infants (under 18) take claims?
How do i get doctor/medical reports?
What other medical examinations will
i have?
Should i take photographs of my injuries?
Should i keep a diary/record of my
injuries/whiplash?
How will my claim be resolved? Settlement
discussions – what is involved?
What expenses can i claim in accident
cases?
How much compensation
do i get for my injuries?
Is there tax payable on my compensation?
What if i had already suffered from
injuries before the accident?
Can i claim for loss of income?
Will the insurance company hire a private
investigator to investigate my claim?
Can i claim if the other party is uninsured?
Will my case go to court? How much
will it cost me to make a claim?
What is the court process for my accident
claim?
Who is to blame in an
accident? When can I claim?
You are entitled to submit a claim for Compensation to
the Injuries Board (also known as PIAB or the Personal Injuries
Assessment Board) or through the Courts in certain circumstances,
if you can establish that the party/person who caused the accident
or injury was at fault (if you can establish that the said person
or party was only partly at fault, then you are entitled to be compensated
to the extent of this percentage of liability). In certain cases,
this aspect does not cause a major difficulty (for example, usually
where your vehicle is hit from the rear). In other cases, it can
be very difficult to establish that the other party is liable or
partly liable. Ultimately, it may be left to a Court to decide this
question or it may be resolved through negotiation between MSM Solicitors
and the Insurance Company. Feel free to ring MSM Solicitors for
our view without obligation.
Who is
to blame? More details.
At the first consultation with MSM (or over phone) MSM
will try to advise you as to the likelihood of your claim being
successful. Sometimes, it is clear that a successful outcome (or,
as the case may be, unsuccessful outcome) will be achieved but certain
cases are taken on the basis that there is considerable confusion
as regards whether the claim will be successful but, having balanced
the risk and costs involved, it has been decided to pursue the claim
in the hope that a compromise will be reached with the other person’s
Insurance Company and so result in fair compensation, taking into
account the fact that you might be partly responsible for the accident.
So, if you are involved in head-on collision with another car on
a bend where you were partly on the wrong side of the road and,
likewise the other party was partly in the wrong, it may be appropriate
that the claim be settled on a percentage basis. For example, it
might be agreed that each succeed to the extent of 50% - in this
case the compensation which you will receive will be only half which
you would have received had you been fully in the right and, likewise,
the other person will receive compensation of half the normal worth
of the case. This percentage of compensation may be very large,
or small, depending on the extent of injuries and damage caused
but it is normally worth pursuing. However, in this case, you might
lose your no-claims bonus with your Insurance Company (unless you
have insurance to cover this).
What about
motorcycles/motorbikes?
In the same way, a claim can be taken by the driver of
a motorcycle/motorbike provided they can show that the Other Party
is liable.
Can I
sue where I am injured from a Slip and Fall or Tripping Accident?
Yes; the rules are the same; you need to be able to show
that the Other Party is liable. So, if you slip in a supermarket,
you need to show that the floor is slippery or other such defect.
Please feel free to ring MSM Solicitors to discuss.
What if
I lose my Case?
Your case can be assessed at intervals so as to reduce
this risk. However, if you lose , you are liable to pay expenses.
If you lose, hopefully, the costs can be kept to a minimum by careful
negotiation with Defendant.
How long
will my accident claim case take?
The time that your case takes depends on a number of factors.
Usually, it is best not to resolve your case until your injuries
have settled down. If your injury is not very serious, it can be
resolved within a short time. However, if your injuries are serious
and long-lasting, then you are advised to wait some considerable
time before resolving.
Do i need
to go to court for accident claim?
Most injury cases are resolved out of Court so there is
generally not any need to go to Court.
What should
i do after accident?
Keep a Diary:
It is advisable to write down details of the accident as soon as
possible. In other words, as soon as one is in a position to do
so, one should put in writing one’s account of the accident.
The reason for this is to avoid forgetting the relevant details.
One should also take detailed notes of one’s conversations
with the other driver, witnesses, Gardai and other persons. This
account can then be referred to in the future (possibly some considerable
time afterwards for a Court Case) and will be a very valuable aid
to your memory.
Furthermore, it would clarify your thoughts and make it easier for
you to recollect the accident and avoid confusion and conflicting
evidence being given by you (which can result from bad memory and
can severely damage your case in the event of your case going to
Court). Even though the accident might have occurred, say, two years
prior to the Court hearing, one is expected to remember most of
the occurrence and one can find oneself in difficulty in Court if
one is very vague or unclear as regards events.
Inform your Insurance Company:
At the earliest date, you should inform your Insurance Company of
the occurrence and obtain an Accident Report Form from your Insurance
Company, complete this and return it to the Insurance Company. There
is normally very little difficulty in completing a form of this
nature, which will also include a section in which you draw out
a simple sketch of the accident but nevertheless care must be taken
in completing it.
MSM Solicitors will get details from Gardai:
MSM Solicitors usually write to the Gardai, requesting confirmation
of names addresses and insurance details of Defendant. It is important
that these details be correct, so as to ensure case is not proceedings
on the basis of incorrect information. Furthermore, the Gardai may
be in a position to give names of witnesses or other relevant details
which I might not have at this point.
The Gardai will normally give this information. If the Gardai are
about to prosecute one of the parties involved, the Gardai will
still give this information but will not release more detailed evidence
until after the prosecution. If there is a prosecution of the said
Defendant, (that is, if the Gardai charge the Defendant with careless
driving or dangerous driving in the “Criminal Courts”,
remember, you will be claiming compensation for you in the “Civil
Courts” or PIAB). MSM Solicitors will arrange to be in Court
so as to hear all the evidence but, as it is a Garda case, you and
your solicitor would not be allowed to be directly involved (unless
you are prosecuted and your solicitor would then be defending you).
Should i
attend hospital after accident?
You might attend a Hospital immediately after the accident or you
might be referred to a Hospital at a later date. If it is realised
at the scene of the accident that injuries might have been suffered,
it is normal for you to be brought to a Hospital for examination.
At the Hospital, Medical Personnel will arrange for appropriate
examinations and have you referred for X-rays and other such more
detailed tests and treatment. Frequently, injury is often not perceived
immediate after the accident and you might only become aware of
it some hours or days later. In other cases, it is normal for you
to attend your GP and for your GP to refer you to the Hospital for
X-rays and other Scans.
Accordingly, in these cases, it may be some days before you attend
Hospital. Doctors sometimes advise that X-rays be taken in these
cases, even if bony injury (for example, a break or fracture) is
not suspected ;in these cases, X-rays may be very useful at a later
date so as to compare the condition of one’s bone at this
stage with development at a later date for Medical analysis and
legal proofs . The Hospital might advise that you return to the
Hospital at intervals subsequent to this initial examination for
continual assessment or you might be referred back to your GP. In
other words, it is likely that you will be asked to return to the
Hospital every few weeks for assessment. At the initial attendance
at the Hospital, appropriate Medical prescription will be given
(or you might be referred to your GP for this). In whiplash cases,
it is normal for pain-relieving medication to be prescribed, as
the degree of pain in these cases can be most severe. Furthermore,
Anti-inflammatory medicine might also be prescribed if Doctors are
of the view that this is appropriate.
Should
i return to work after accident?
After you have been discharged from Hospital, you then return home
to live with the injury as best you can. You may soon have to face
the question of whether you are able to return to work. This question
should be addressed with your Doctor. The answer to this question
(of whether or not to return to work) will depend on the nature
of the injury and the degree of injury suffered as well as the nature
of your employment. Accordingly, if you have suffered injury to
your neck, back and head, you might not be in a position to return
to work if you are engaged in physically-demanding employment.
Likewise, if you are engaged in a job which requires considerable
travelling in your car, injury to your neck/back may prevent you
resuming your job for some time. On the other hand, your Doctor
might advise you to return to work. In law, you are obliged to return
to work when you are able to do so and you are not entitled to stay
out of work when return to work is medically advisable and possible.
In law, you are obliged to “mitigate” (or reduce) your
losses in accident cases, meaning that you are obliged to return
to work and resume income so as to keep to a minimum the amount
which you are claiming against the person who caused the injury.
In any event, each case varies and you can only assess your own
injuries and own job and make the appropriate decision in the circumstances.
How do infants
(under 18) take claims?
Any person under the age of 18 years cannot sue in his or her own
name. Instead, the case must be taken in the name of one of the
parents. The infant is allowed to give evident in Court. When a
settlement is reached in respect of the case, the matter must come
before a Judge who must approve the settlement. This means that,
even through the Insurance Company might have agreed to pay a certain
amount of money to the infant, the matter must be presented before
the Judge who must be satisfied that the amount being offered is
sufficient compensation for the infant. The Claim also goes through
the PIAB process.
The reasoning behind Court approval being required (as well as PIAB)
is that the Court is a Guardian of the infant and must be happy
that the settlement is a fair and reasonable settlement, taking
into account all factors. The said monies, whether received by way
of settlement or Court Order, are lodged in Court and cannot be
drawn by the infant until the infant reaches 18 years. After 18
years, the infant is entitled to withdraw the monies. The said monies
are invested during the said period, until the infant is 18 years
of age. The investment is carried out by the Court System. It is
possible, prior to the infant reaching 18 years of age, to request
the Court to allow certain monies to be withdrawn so as to allow
these monies to be used for the infant (for justifiable purposes,
for example, education or medical needs). However, the Court is
generally reluctant to allow monies to be paid to an infant unless
the payment is for the benefit of the infant in the long term.
How do
i get doctor/medical reports?
Reports from your Doctor and Medical Consultants are normally required
in compensation cases. In other words, it is necessary to obtain
an outline of your injuries from the Doctor and explanation by the
Doctor of the nature of injuries suffered, the seriousness of same
and the likely period for which the injuries will last and the general
prognosis (forecast/prediction as regards your condition). MSM Solicitors
will arrange these Reports. It is normal, in injuries to neck and
back, to obtain Medical Report from an Orthopaedic Surgeon as these
are experts in injuries of this nature. The Orthopaedic Surgeon
will examine your injuries in the light of x-rays and other Medical
data. To prepare the Report, the Orthopaedic Surgeon will meet you
and discuss your injuries. When meeting the Orthopaedic Surgeon,
it is most important to ensure that you outline all of your complaints.
What other
medical examinations will i have?
The Insurance Company of the other person (Defendant) & PIAB
will arrange for you to be examined by their Doctor/Consultant.
The purpose of this examination is to allow the Insurance Company/PIAB
to assess your Medical condition to help them to “value”
your case. The said Doctor/Consultant will sometimes carry out various
stretching exercises with you (in relation to back, neck and such
injuries) so as to discover the extent to which the injury has restricted
your movements. This Doctor/Consultant will ask you to outline the
manner in which the accident has affected you. It is advisable to
consult your Diary/Record at this point so that full details are
given to the said Doctor. These examinations are arranged in almost
all cases and, accordingly, you should not feel nervous or concerned
about undergoing them; on the contrary, you should assert yourself
and outline injuries as comprehensively as possible as to do justice
to your claim.
Should
i take photographs of my injuries?
In certain cases, photographs may be useful so as to produce a historical
recording of injury. Photographs are not of any benefit in injury
to neck and back but can be of considerable benefit where cut/bruises/other
markings are evident. These photographs can be of considerable benefit
in settlement discussions/Court hearings when the case takes place
some months or years after the injuries and when the injuries appear
to have fully healed. Without such photographs, it may be extremely
difficult to convince a Judge/Insurance Company representative that
injuries were as nasty as photographs will prove.
Should
i keep a diary/record of my injuries/whiplash?
It is advisable to keep “a diary” (or written record
or notes) concerning your injuries, (meaning that you should write
down particulars of your suffering, details of same, how same affected
your lifestyle; whether same affects your sleeping pattern; any
difficulty in sitting, difficulty in walking, problems in your occupation
and all other such relevant details concerning the injury including
whether pain relief tablets are being taken). This detailed outline
of your suffering will be of considerable benefit in the case (for
example, if you are discussing the case two years later, you are
less likely to forget relevant details). Normally, you should enter
details in the diary or written record every few days/weeks and
it can be a very short outline if you do not wish to go into much
detail (usually minute detail is not required).
How will
my claim be resolved? Settlement discussions – what is involved?
At some stage, discussions dealing with the settlement of your case
are likely to take place. Nowadays, these are frequently done by
your Solicitor over the phone (in less severe cases). In more serious
cases, Settlement Discussions involve a meeting taking place between
MSM Solicitors and the Insurance Company . In other words, a meeting
takes place between your representatives and the representatives
of the Insurance Company in which your case is discussed with a
view to resolving it. You will not be present at the discussion
but you will be asked to attend at the location so that you can
be consulted concerning details of the discussion. If these discussions
take place, the Insurance Company representatives are likely to
make an offer of compensation to you. MSM Solicitors (sometimes
a Barrister will assist) will advise you as to whether this offer
is sufficient or whether you should turn it down.
Normally, these discussions involve offer,
counter-offer and negotiations for some considerable time until,
hopefully, a satisfactory offer is made which you decide to accept.
The said discussions can only take place when you feel that you
are in a position to assess your injuries i.e. it is advisable to
wait some considerable time before you enter into discussions, as
otherwise, you are likely to under- sell your injuries (for example,
if you settle for a certain amount of money on the basis of your
perceptions of your injuries after a period of six months after
the accident, you might discover, some months later, that your injuries
are considerably worse and, of course, it will then be too late
if you have already accepted a settlement offer).
At the said settlement discussion, it is
advisable for you to attend with some confidante or friend so that
the offer can be discussed with the said person. Of course, your
Barrister and MSM Solicitors will also advise you as to whether
the offer is a reasonable one in the circumstances. At these discussions,
it is advisable for you to bring your diary, so that you can revive
your memory of the details of the accident and your suffering.
What expenses
can i claim in accident cases?
From the very beginning, you should keep invoices or receipts in
respect of all expenses incurred. These invoices will include, for
example, hospital invoices, invoices for x-rays, taxi and other
travel expenses, pharmacist’s expenses, doctor’s expenses,
specialists’ expenses, fees for MRI Scans and other such expenses
arising out of the accident. These Invoices/Receipts should be given
to MSM Solicitors at intervals so that they may be included in the
claim. Without written receipt/invoices, it may be difficult to
be compensated in respect of these out-of-pocket expenses. Out-of-pocket
expenses are referred to as Special Damages.
How much
compensation do i get for my injuries?
Many factors are taken into account in deciding the amount of compensation
to which you are entitled to. You are entitled to be compensated
to the extent of your injuries. Naturally, you are entitled to a
higher compensation if your injuries are serious. Seriousness of
injuries is determined by a number of factors, including intensity
of pain suffered, whether you attended hospital and were detained
for a period, the extent to which the injury interfered with your
normal lifestyle, the length of time which the injury and suffering
have persisted. A very important factor to be taken into account
in assessing the amount of compensation is the prognosis i.e. the
extent to which the injury is likely to affect you in the future;
accordingly, if the doctors are of the view that your injury is
likely to last into the future and further deteriorate, this will
be a very important factor in deciding compensation.
Furthermore, if the doctor is off the view that the injury is likely
to lead to arthritis or other debilitating disease, this will be
very relevant. On the other hand, if your complaints have largely
subsided and you have almost made a full recovery (say after a period
of one year after the accident), this will indicate that your injuries
are much less severe. Your occupation at the time of an accident
might be very relevant. Accordingly, if you are engaged in physically-demanding
employment, the injury may have much more severe consequences (to
the extent to which it will adversely affect your capacity to work)
than if you are engaged in a sedentary occupation; but each case
must be examined on its own merits.
Is there
tax payable on my compensation?
Settlement payments or Court Awards in respect of personal injuries
are exempt from Income Tax. Accordingly, money received in this
way comes within the rare category of not being taxable. Quite clearly,
this is a major advantage to payments of this nature. Any income,
including rental income received in respect of investment of such
compensation or Court Award, is also exempt from Income Tax. However,
for the exemption to apply, income arising from the investment must
comprise of the “Sole or main” income of the individual
concerned. In these circumstances, the Revenue Commissioners define
“Sole or Main” as being more than 50%. In working out
these calculations, they disregard any Invalidity/Disability Pension
received, provided that the injury or disability which gave rise
to the payment of the said Invalidity/Disability Pension, arose
from the same accident.
What if
i had already suffered from injuries before the accident?
Frequently, clients will have suffered pre-accident injuries or
have been complaining of back/neck injuries prior to an accident.
In other words, you may have been involved in a previous accident
or otherwise suffered back, neck, head or other complaints prior
to the accident. The accident might render these injuries worse.
For the present accident, one is entitled to be compensated to the
extent that the present accident contributed to the worsening of
your condition.
Sometimes, it may be difficult to distinguish between the injuries
or complaints which prevailed prior to the accident and those which
were caused by the present accident. In any event, it is a matter
to analyse your condition and to “apportion” the causes
of the present complaints (taking into account your own complaints
and doctors views as regards these aspects). In any event, please
be reassured that you are entitled to be compensated for the extent
which the present accident rendered you worse.
Can i
claim for loss of income?
If you suffer loss of income arising out of the accident, you are
also entitled to claim for this loss. If your employer does not
pay you because you are out of work, or you suffer a reduction in
your income, you are entitled to claim this amount. Any loss of
income suffered by a self-employed person can also be claimed (usually
accounts are required from your Book-Keeper/Accountant to vouch
loss of income in these cases).
However, generally, any Social Welfare received by you is deducted
from this. For example you receive €5,000.00 less from your
employer during a three month period than you otherwise would have
received, you are entitled to claim this €5,000.00. However,
if you received, for example €2,000.00 Social Welfare during
this period, the €2,000.00 would be deducted from the €5,000.00.
Accordingly, in these circumstances, you would be entitled to compensation
of €3,000.00. Certain types of Social Welfare are non-deductible
but these are rare.
Will the
insurance company hire a private investigator to investigate my
claim?
Insurance Companies frequently employ Private Investigators to investigate
claims. Typically, the investigators will follow you and examine
your activities and take photographs of you carrying out activities
which might indicate that your injuries are not as serious as you
are claiming. In other words, if you are claiming that your back
and neck are seriously injured and that you are unable to carry
out activities, the Private Investigator might attend close to your
house with a view to obtaining evidence that you are able to engage
in certain activities (for example, gardening or other heavy work).
Accordingly, you should be aware, when making a claim, that the
Insurance Company might investigate you in this way.
Can
I claim if the other party is uninsured?
Yes, in most cases you can claim, even where it is a “hit-and-run”
accident, (where the driver is unidentified and has fled from the
scene of the accident). In these cases a claim can usually be made
against the MIBI (Motor Insurers’ Bureau of Ireland). Please
contact MSM Solicitors for advice.
Will my
case go to court? How much will it cost me to make a claim?
Most cases do not go to court. Most are resolved in PIAB or prior
to you having to appear in Court.
As regards fees, hopefully , most of your
fees will be payable by the Other Party’s Insurer (PIAB awards
do not cover legal fees). Please feel free to ring MSM Solicitors
to discuss.
What is
the court process for my accident claim?
Almost all claims have first to be submitted to PIAB. If the PIAB
process has not resolved the claim then the matter must be brought
before the Court . The Court process means issuing a “writ,”
namely a summons to the Defendant that, unless you are compensated
properly, you are going to bring the matter before a Judge for assessment/hearing.
Once you commence a Court process, you are bound by the rules of
the Court in terms of documentation/hearing dates and other procedures
(you must go to PIAB in most cases first, i.e. you cannot leap-
frog to Court).
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