Sarah Corcoran BL October 6 th 2016

Early Stages of PI Claims  Lodging claims with the Injuries Board – avoiding some pitfalls Accurate Information  Assessment – steps to take Accurate opinion on Quantum

Legal Developments  Clarke v O'Gorman [2014] IESC 72 Failure to obtain authorisation does not operate as a jurisdictional bar It bars the remedy not the right If a Defendant wants to make an objection it must be pleaded in the Defence  Renehan v. T & S Taverns Ltd [2015] IESC 8 Authorisitation pursuant to section 46(3) of the PIAB Acts fixes the end point of the period during which the statute is disapplied pursuant to section 50 of the PIAB Acts vis-à-vis the respondent named in the authorisation The starting point is the making of the application under section 11 of the PIAB Acts  Noel Recruitment (Ireland) Ltd v PIAB [2016] IECA 129 One application – no additional application in respect of same injury and incident allowed One authorisation – unless an additional authorisation issues under provisions of the PIAB Acts

Warning Letters  Section 8 of the Civil Liability and Courts Act 2004  An important opportunity  Negative consequences  Does not apply to clinical negligence cases

Civil Liability Amendment Bill 2015  Lump sum awards of Damages  Problematic in catastrophic injuries cases Investment risk Mortality risk Inflation risk Over compensation risk  Judicial Disquiet – “really shameful”

Working Group on Med Neg and Periodic Payments Report 2010  Lump sum in catastrophically injured cases “inadequate and inappropriate”  Recommendations included Periodic payments for lifetime of the injured party Security Indexation Variation Stepped Payments

Civil Liability Amendment Bill 2015  Inter-Departmental Working Group on Legislation on Periodic Payment Orders Examined technical aspects of 2010 report  Heads of Bill released on 27 May years following the report of the WGMNPP Pre-legislative scrutiny in September 2015 Anticipated to be published pre-Christmas 2016 Enacted – date unknown

Head 2 – Core of the Bill  51 H- Interpretation “catastrophic injury means a severe injury, involving serious impairment, the direct and proximate cause of which requires the plaintiff to receive life-long, permanent care and assistance” Legislation is limited by definition not monetary value reflecting the primary purpose of the legislation those needing long term care would have the necessary financial resources to cover such costs for their life time

Head 2 – Core of the Bill  51I Power to award damages by periodic payment Catastrophic Injuries Long term permanent care required for lifetime Future medical treatment Future care Provision of assistive technology and other aids and appliances Loss of earnings if by consent of the parties Decision to make the order subject to hearing the parties preferences and the best interests of the Plaintiff

Head 2 – Core of the Bill  51I Power to award damages by periodic payment By consent – subject to Court approval Stepped Payments PPO can be increased or decreased at specified time to account for changes in the plaintiff’s circumstances e.g. starting education, reaching age of majority, completing education or moving into residential care Stepped PPO must be specific as to reason, dates and amounts

Head 2 – Core of the Bill  51J Security of periodic payments Court must be satisfied continuity of payments is ‘reasonably secure’ Court may order manner in which the PPO is to be paid Method of payment cannot be altered without Court approval

Head 2 – Core of the Bill  51K Guarantees of future periodic payments Payments reasonable secure where: State Authority Not State Authority but eligible for payment from ICF (51L Amends s. 3 of Insurance Act 1964 to remove cap on ICF payments) Not State Authority but evidence to satisfy guarantee of payment

Head 2 – Core of the Bill  51 M Indexation of periodic payments PPO subject to annual review Linked to Harmonised Index of Consumer Prices- CSO Index rate to be reviewed at 5 year intervals Power to Minister of Justice & Equality to amend the index or index rate applicable to PPO by regulation Objective is that the index being applied correctly measures the change in costs for plaintiffs

PPO in Practice General damages€ 450,000 Retrospective care costs€ 100,000 Loss of earnings€ 350,000 Special damages to date€ 150,000 Accommodation€ 275,000 Total€ 1,325,000 Plus annual payments To age 18€ 150,000 (indexed) From age 18€ 175,000 (indexed)

Other provisions  51N Prohibition and assignment, charging or commutation of the right to a PPO  51O Costs – s17 of the Civil Liability and Courts Act 2004  Head 3 – Amendment to Bankruptcy Act 1988  Head 4 – Amendment to the PIAB Acts

Issues for debate  Security  Indexation  Variation – Omitted  Interim Payment and Provisions awards – Omitted  Injuries Board

Conclusion  Advantages and Disadvantages  Many Periodic Payment Orders made since 2010  The sooner the better