t is estimated that acquired brain injury affects between 10,000 and 13,000 people every year in Ireland. Within that group, a number of people will find themselves in the litigation process. Those who do are those who have sustained a traumatic brain injury as a result of an accident caused by the negligence of another, an assault criminally inflicted or an acquired brain injury as a result of medical negligence.
In Ireland, the litigation process can be long and protracted. In the context of catastrophic injury claims, including cases involving acquired brain injuries, the current system of compensating the injured party for their pain and suffering, as well as their out of pocket expenses to date and into the future, is widely considered to be outdated and unsatisfactory. Traditionally, the system has been adversarial and the concept of rehabilitation is not something that sits comfortably within that world. Typically, cases can take years to come to a conclusion and that conclusion, as matters currently stand, is compensation in the form of a lump sum payment designed to compensate the injured party for their pain and suffering and to provide for all of their future needs, including any rehabilitation needs. Our UK counterparts are moving towards a more collaborative approach in catastrophic injury cases where the necessity for, and benefits of, rehabilitation are given priority from the outset, with the sides working together in a claimant centred process by adhering to a “Rehabilitation Code”. Although no such code exists in Ireland, proposed legislation which would allow a Court to make annual payments to an injured party for his or her lifetime instead of a lump sum payment could have a significant impact on how individuals with brain injuries come through the litigation process.
Personal Injuries Litigation
A person who has suffered a personal injury, including an acquired brain injury, as a result of negligence must begin their claim in the Personal Injuries Assessment Board (PIAB) within two years of the date of injury. PIAB was set up in 2003 with the aim of lowering the costs of personal injuries claims and providing faster access to compensation for the injured party. Unfortunately, this is of little relevance in the context of catastrophic and acquired brain injuries, because PIAB is not equipped to assess the complexity of such claims. Where the injury has come about as a result of medical negligence, there is no requirement to begin the case in PIAB and although there has been a suggestion of a type of medical injuries assessment board, the reality of that coming into existence is likely to be some way off. It is very important that a person with an acquired brain injury that is considering making a claim takes legal advice as soon as reasonably possible after the injury. As mentioned above, the length of time within which someone can bring a claim in accordance with the Statute of Limitations is two years from the date of the injury. There are certain exceptions to this time limit and circumstances in which it can be extended. For example, where the injured party is under the age of 18, the two year limit does not begin to run until they reach the age of 18. It is always preferable to seek legal advice at the earliest practical stage however, in order to avoid any difficulties arising in terms of statutory time limits at a later stage. Generally speaking, PIAB will refuse to assess cases involving acquired brain injuries and will issue what is called an Authorisation to allow the injured party to proceed down the traditional route of Court proceedings or indeed to attempt to resolve the matter through Mediation.
The Mediation Act 2017 requires solicitors to advise their clients, in advance of issuing proceedings, about the potential benefits and advantages of Mediation as a means dispute resolution. Where a case is not suitable for Mediation, or where an injured party chooses to proceed with personal injury proceedings notwithstanding the option to mediate, proceedings will commence by way of personal injury summons. As proceedings progress, the injured party will find themselves subjected to a significant number of assessments from experts across many fields acting on their behalf, as well as on behalf of the Defendant who is often represented by an insurance company. Frequently, when the case is ready for hearing and if it does not settle out of Court, the Judge is presented with two starkly contrasting versions of what the injured party’s needs are in terms of future care and rehabilitation and, in particular, the cost associated with those needs. The Judge is then placed in the invidious position of having to decide which side’s experts he prefers and reach a fair and reasonable conclusion, having the best interests of the injured party as the paramount consideration.
Lump Sum Payments v Periodic Payment Orders
As the law currently stands in Ireland, there is no mechanism by which periodic payments can be ordered by a Court. The Civil Liability (Amendment) Act 2017, when commenced, will fundamentally change the approach to compensation in catastrophic injury cases by allowing a Court to order periodic payments to be made to an injured person over the course of that person’s lifetime. The proposed legislation is underpinned by a desire to establish a fairer system of compensating catastrophically injured persons following on from the 2010 report of the Working Group on Medical Negligence and Periodic Payments, which described the current lump sum payment system as “inadequate and inappropriate”.
The Minister for Justice and Equality, Charlie Flanagan TD, announced on 15th November 2017 that the legislation has now passed all stages in the Oireachtas. Under the new legislation, it is envisaged that a Court could award the cost of future care, future medical treatment and assistive technology requirements of an injured party in the form of index-linked annual payments (Periodic Payment Orders) in circumstances where that person has suffered severe injuries and will require treatment and assistance in the long term. In its 2010 report, the Working Group on Medical Negligence and Periodic Payments recommended “the introduction of earnings and cost-related indices which will allow periodic payments to be index-linked to the levels of earnings of treatment and care personnel and to changes in costs of medical and assisted aids and appliances.” This recommendation was not, however, reflected in the legislation which states that “the index used to calculate the revision shall be the annual rate of the Irish Harmonised Index of Consumer Prices (HICP) index as published by the Central Statistics Office.” It has been suggested that this is an inferior means of indexation of future payments that will not accurately reflect increases in medical inflation or carers’ salaries. Indexing payments in this manner could result in a situation where the injured party finds that they have not been adequately compensated to cover the costs of their care into the future in circumstances where the rise in carers’ salaries and the cost of medical treatment, aids and appliances has increased at a greater rate than the consumer price index.
Until such time as the new legislation is commenced, the lump sum system, which has been roundly criticised by judges, remains. Although an Irish Court cannot order interim or periodic payments, a number of cases in recent years have come before the Courts where the sides have agreed an interim payment in the hope that the proposed legislation will soon be enacted to enable the Court to make Periodic Payment Orders into the future. There have been some cases where the sides have taken opposing views on the issue of periodic payments as against lump sum payments. The clear difficulty with lump sum payments is that there is a very real prospect of one of two situations developing:
In the case of O’Neill v The National Maternity Hospital, it was argued by the Defendant that the injured party, a young girl with a brain injury caused at birth, should be required by the Court to accept an interim payment in relation to her current needs and have the balance of her case adjourned for nine or ten years for further assessment at that stage. Her parents argued that she should be entitled to have her case assessed once and for all on a lump sum basis because they did not want her to have to undergo a series of intrusive and disruptive assessments at a delicate developmental stage. In considering the opposing arguments, Judge Bernard Barton concluded that he could not order her to accept an interim payment and she was entitled to have her case assessed on a lump sum basis in accordance with the law as it currently stood. He said that her parents clearly had her best interests at heart and, although periodic payments would be desirable in cases such as this, in the absence of the enactment of legislation or any exceptional circumstances requiring the intervention of the Court, he had no jurisdiction to compel her to accept an interim payment.
The Court of Appeal decision in the case of Russell v HSE is also important in terms of the level of compensation likely to be awarded in catastrophic injury cases. Traditionally, any such award was made on the basis of an assumption that the lump sum would be invested and that the real rate of return on the investment would be at a rate of 3%. Accordingly, the lump sum would be discounted by 3% to allow for that anticipated return. In the Russell case, the High Court considered the 3% rate to be inappropriate and held that a discount of 1% in terms of the future care aspect of the lump sum would be more appropriate. That decision was appealed by the HSE but was upheld by the Court of Appeal in a ruling that essentially means that there is no necessity or requirement for catastrophically injured individuals to invest their lump sum awards in high risk funds. The Court of Appeal was also highly critical of the Oireachtas for its failure to enact periodic payments legislation. The State sought, and were denied, leave to appeal the decision to the Supreme Court and the Judgment of the Court of Appeal stands, meaning the level of awards in catastrophic injury cases is likely to increase substantially.
The UK Approach
The process is somewhat different in the UK and it is worth considering the approach adopted there, particularly because it places a significant emphasis on rehabilitation from a very early stage in the case. There are two documents that are particularly useful and informative in that regard:
The majority of large insurers in the UK, together with a significant number of law firms acting for both injured parties and insurers, have agreed to follow the Guide to the Conduct of Cases Involving Serious Injury. At the heart of the Guide is a commitment to putting the claimant or injured party at the centre of the process. The Guide states that it is intended to put in place a system “that meets the reasonable needs of the injured claimant whilst ensuring the parties work together towards resolving the case by cooperating and narrowing the issues.” It should be noted, however, that the Guide does not apply to cases involving medical negligence.
In order to be effective, the Guide requires a collaborative approach to be adopted by the parties. It is envisaged that this would begin with early notification of the claim by the claimant to the Defendant and a commitment to resolving the question of liability as soon as possible, and not later than six months after the date of notification.
One of the key objectives of the Guide is to provide early access to rehabilitation where appropriate to maximise the injured party’s potential for recovery. The Guide states that “at the earliest possible stage the parties should, in consultation with the claimant and/or claimant’s family, consider whether early intervention, rehabilitation or medical treatment would improve the present or long term situation.”
The objective of the Code, which became operational on 1st December 2015, is “to ensure that injured people receive the rehabilitation they need to restore quality of life and earning capacity as soon as possible and as much as possible.” The need for rehabilitation is addressed as a priority and rehabilitation needs are assessed by independent professionals with appropriate qualifications, skills and experience. The Code sets out the following ten markers that should be taken into account when assessing an injured party’s rehabilitation needs:
- Pre-existing physical and psycho-social comorbidities
- Return to work/education issues
- Dependants living at home
- Geographic location
- Mental capacity
- Activities of daily living in the short term and long term
- Realistic goals, aspirations, attainments
- Fatalities/those who witness major incidence of trauma within the same accident
- Length of time post-accident
Under the Code, the parties should consider the appointment of an expert case manager or rehabilitation professional to assess rehabilitation needs as soon as possible. The case manager will prepare an Immediate Needs Assessment which will be furnished to both sides and paid for by the Defendant. The Defendant then has a duty to consider the recommendations in the Immediate Needs Assessment and respond to the claimant, stating the extent to which it accepts the recommendations and is willing to fund treatment at that stage and the justification for any refusal, with alternative recommendations. Following implementation of the Immediate Needs Assessment, the Code states that “the parties should consider and attempt to agree as soon as possible a collaborative process for meeting the claimant’s ongoing rehabilitation needs.” Legal advisors acting for injured parties should be wary of any attempt to settle a claim entirely on the basis of the Immediate Needs Assessment and it is not intended for that purpose.
It is clear that the implementation of these codes in the UK represents a very definite move from an adversarial system towards putting the injured party’s best interests at the centre of the entire process. The implementation of the 2015 Rehabilitation Code would allow for a type of interim payment to address immediate rehabilitation needs, which could result in a better outcome for the injured party and, ultimately, a cost saving for the Defendant in circumstances where early access to rehabilitation has improved the outlook for the injured party’s long term future needs.
What next for Ireland in terms of Litigation and Rehabilitation?
Although interim payments are only currently made in Ireland by agreement between the parties, experience would suggest that insurers are minded to agree to make such payments if a convincing case is put to them. Considering that many of the UK insurers that have signed up to the Guide to the Conduct of Cases involving Serious Injury also act in the Irish market, it might well be the case that insurers will take a pragmatic view and be more open to making an interim payment for immediate rehabilitation needs in Ireland.
The various advocate groups could consider a joint approach to the Insurance Federation or individual insurance companies with a view to advancing their position and making a strong case for interim payments for rehabilitation at an early stage. The Courts, and indeed the insurance companies, rely on the excellent work of all professionals involved in assessing rehabilitation needs in determining what the best interests of an injured person are and are likely to be into the future.
The system as it currently stands in Ireland is not supportive of a collaborative approach between professionals. Instead, because of the current system, the role of the expert often becomes adversarial with the result that each side’s experts put forward dramatically different views. If our system could be adapted to follow along the lines of UK approach, it could result in a more claimant centred process with a focus on rehabilitation and where the best interests of the plaintiff, the injured party, the victim, are given priority. Whilst the Mediation Act 2017 represents a welcome development for some claimants, its effectiveness remains to be tested. The stated objective of the legislation is to: “Promote mediation as a viable, effective and efficient alternative to court proceedings thereby reducing legal costs, speeding up the resolution of disputes and relieving the stress involved in court proceedings”, however, at the time of writing, it would seem that there is a long way to go in that regard.