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46 2003

Personal Injuries Assessment Board Act 2003

Chapter 2

Procedure for assessment

What this Chapter contains.

19. —This Chapter contains the principal provisions relating to the making of an assessment of a relevant claim the making of which has been arranged by the Board under section 14 (1).

Assessment.

20. —(1) In this section “assessment”, in relation to a relevant claim, means an assessment of the amount of damages the claimant is entitled to in respect of the claim on the assumption that the respondent or respondents are fully liable to the claimant in respect of the claim.

(2) An assessment of a relevant claim shall be made by such one or more of the employees of the Board for the time being assigned the performance of functions under this Chapter as the Board directs (in subsequent sections of this Part referred to as “assessors”).

(3) That employee or those employees may be assisted in the making of the assessment by one or more of the persons the services of whom are engaged by the Board under section 80 (in subsequent sections of this Part referred to as “retained experts”).

(4) An assessment shall be made on the same basis and by reference to the same principles governing the measure of damages in the law of tort and the same enactments as would be applicable in an assessment of damages were proceedings to be brought in relation to the relevant claim concerned.

Section 20 : supplemental provisions.

21. —(1) The assessors shall make their assessment by reference to the information, records or other documents required or authorised by this Act to be furnished to them; no hearing shall be conducted by them for that purpose.

(2) The assessors may also have regard, for that purpose, to relevant information, records or documents that came, before the commencement of this section, into the possession of the board known as the “Interim Personal Injuries Assessment Board” established on 27 November 2002 by the Minister for Enterprise, Trade and Employment.

(3) If the assessment is an assessment of a relevant claim relating to a proposed action for damages under section 48 of the Act of 1961 the assessment shall specify the proportion of the amount of damages it provides for to which each of the dependants concerned is to be entitled.

(4) An assessment shall not, in respect of the damages which it provides for, specify that they shall be paid in 2 or more instalments.

Power to impose charges.

22. —(1) The Minister may make regulations enabling the Board to impose the charges referred to in subsection (2) in respect of the dealing by the Board with an application under section 11 in relation to a relevant claim.

(2) Those charges are—

(a) a charge on the claimant of an amount specified in the regulations under subsection (1),

(b) a charge on the respondent or, as the case may be, each of the respondents of an amount specified in those regulations, and

(c) a charge, additional to that referred to in paragraph (b), on the respondent or, as the case may be, each of the respondents, for the purpose of defraying any amount of the expenses incurred by the Board, or on its behalf, in the making of the assessment concerned that, in its opinion, is of an exceptional kind.

(3) For the purpose of subsection (2)(c) and regulations under that provision—

(a) “an exceptional kind”, in relation to an amount, means an exceptional kind relative to the amounts of expenses typically incurred by the Board, or on its behalf, in the making of assessments,

(b) without prejudice to paragraph (a), any amount of expenses incurred by the Board, or on its behalf, in the arranging of, or the carrying out of, a medical examination referred to in section 24 (2) is an amount of an exceptional kind.

(4) Different amounts may be specified in regulations under subsection (1) for the purposes of subsection (2)(b) in relation to different classes of relevant claim.

(5) The Board may refuse to deal with an application under section 11 if a charge imposed by it pursuant to regulations under subsection (1) in relation to the application has not been paid to it.

(6) Any amount of charges imposed pursuant to regulations under subsection (1) may be recovered by the Board from the person concerned as a simple contract debt in any court of competent jurisdiction.

(7) Charges may be imposed pursuant to regulations under subsection (1) even though, before the making of an assessment of the claim would otherwise have fallen to be made under section 20 , a settlement is entered into in respect of the relevant claim concerned.

(8) In subsection (2) “respondent” includes a non-accepting respondent (within the meaning of section 34 ).

Power to require additional information, etc.

23. —(1) The assessors may request the claimant to furnish to them such information or documents in the possession or control of the claimant, additional to the information contained in, or the documents which accompanied, his or her application under section 11 , as they consider necessary for the making of the assessment.

(2) The assessors may request the respondent or respondents to furnish to them such information or documents in the possession or control of the respondent or respondents as the assessors consider necessary for the making of the assessment.

(3) If retained experts are assisting the assessors in the making of the assessment the assessors may make the following request if they consider that it is necessary to do so for the purpose of enabling those experts to assist them in the making of the assessment.

(4) That request is a request of the claimant or the respondent or respondents to—

(a) provide such assistance to the retained experts,

(b) furnish such information or documents to those experts, additional to that or those referred to in subsection (1) or (2), or

(c) otherwise co-operate with those experts in such manner,

as is or are specified in the request.

Medical examination of claimant in certain circumstances.

24. —(1) The assessors may make the request referred to in subsection (2) if—

(a) any information or documents furnished by the claimant, whether initially or pursuant to a request made under section 23 , and consisting of any medical opinion (whether a diagnosis or prognosis) in relation to the claimant's injuries is not accepted as being correct by a respondent, or

(b) the assessors otherwise consider it appropriate to do so.

(2) The request mentioned in subsection (1) is a request of the claimant to submit himself or herself to a medical examination which the Board may arrange to be carried out in relation to the claimant by one or more medical practitioners.

(3) That medical practitioner or those medical practitioners shall be a person or persons who have no pecuniary interest or other beneficial interest in, or material to, any matter which could reasonably be affected (whether favourably or unfavourably) by the outcome of the assessment.

(4) For the avoidance of doubt the medical examinations which the Board may arrange to be carried out under this section include a medical examination to be carried out in a place outside the State.

Failure to comply with a request under section 23 or 24.

25. —(1) If a claimant fails to comply with—

(a) a request under section 23 (1), the assessors shall proceed to make the assessment as best they may in the absence of the information or document to which the request related,

(b) a request under section 23 (3), the assessors shall proceed to make the assessment as best they may in the absence of the information or document to which the request related having been furnished to the retained experts or, as the case may be, the assistance or co-operation to which the request related having been afforded to those experts,

(c) a request under section 24 (1)(a), the assessors shall, unless they see good reason for not doing so, make the assessment on the basis that the contention of the respondent concerning the information or document referred to in section 24 (1) and which gave rise to the making of the request was correct,

(d) a request under section 24 (1)(b), the assessors shall proceed to make the assessment as best they may in the absence of the information that would have been provided to them had the medical examination to which the request related been carried out.

(2) If a respondent fails to comply with a request under section 23 (2) or (3), the assessors shall proceed to make the assessment as best they may in the absence of the information or document to which the request related having been furnished to them or the retained experts or, as the case may be, in the absence of the assistance or co-operation to which the request related, having been afforded to those experts.

Powers to request information from third parties.

26. —(1) The assessors may request any person (including a Department of State or any other public body (other than the Revenue Commissioners)) to furnish to them such records, documents or other information in his or her possession or control as they reasonably request for the purpose of—

(a) verifying any item of loss alleged by the claimant in his or her relevant claim, or

(b) complying with the provisions of any enactment that requires specified amounts to be deducted or specified matters to be taken account of in the making of an assessment of damages,

and the records, documents or other information that may be the subject of such a request include records, documents or information that came into existence, or into the possession of the person requested, before the passing of this Act, and it shall be the duty of such person to comply with such request.

(2) Without prejudice to the generality of subsection (1), the assessors may, for the purpose specified in subsection (3), request the Department of the Environment, Heritage and Local Government to furnish to them relevant particulars in relation to a mechanically propelled vehicle contained in a database that is maintained by it for the purposes of any Community act.

(3) The purpose mentioned in subsection (2) is the purpose of the Board's ascertaining the identity of the insurance company or undertaking, if any, which has entered in to an approved policy of insurance (within the meaning of the Road Traffic Act 1961 ) in respect of the vehicle referred to in that subsection.

(4) If the database referred to in subsection (2) is maintained for the time being by another person on behalf of the Department of the Environment, Heritage and Local Government the reference in that subsection to that Department of State shall, for so long as the database is maintained by that other person, be construed as a reference to that person.

Section 26 : supplemental provisions.

27. —(1) If a person fails or refuses to comply with a request made by the assessors under section 26 the assessors may apply to the District Court for an order under subsection (2).

(2) On the hearing of an application under this section, the District Court may, if it thinks fit, make an order directing the person concerned to comply with the relevant request.

(3) A person who fails or refuses to comply with an order made under subsection (2) is guilty of an offence.

(4) The jurisdiction of the District Court under this section shall be exercised by the judge of the District Court for the time being assigned to the district court district in which the person against whom the order concerned is sought resides or carries on business.

Limited power to require certain other information.

28. —(1) A claimant, by virtue of his or her having made an application under section 11 , shall be deemed to have consented to the Revenue Commissioners complying with the following request.

(2) That request is a request by the assessors (which by virtue of this section they have power to make) of the Revenue Commissioners to furnish to the assessors particulars or other information in their possession or control in relation to the amount of income of the claimant for the purpose, and the purpose only of, the assessors' verifying any item of financial loss that is alleged by the claimant in his or her relevant claim and which relates to that income.

(3) Notwithstanding any enactment, it shall be the duty of the Revenue Commissioners to comply with such a request unless the consent referred to in subsection (1) is deemed to have been revoked by virtue of subsection (4).

(4) That consent shall be deemed to have been revoked if, at the date of the making of the request of the Revenue Commissioners, the application under section 11 of the claimant concerned stands withdrawn by him or her in accordance with section 47 .

(5) The particulars or other information that may be the subject of a request under this section include particulars or other information that came into existence, or into the possession of the Revenue Commissioners, before the passing of this Act.

Special provision in relation to vulnerable parties.

29. —(1) If the Board considers it to be a reasonable inference from the manner in which a claimant or a respondent has completed, or is completing or attempting to complete, a step required to be taken by him or her by or under this Act that he or she does not have a sufficient appreciation of the legal consequences the taking of that step, or the following of the procedures generally under this Act, may have in respect of his or her rights or obligations as regards the relevant claim, it shall be the duty of the Board to do one, or more than one, as it considers appropriate, of the following things.

(2) Those things are—

(a) to advise the claimant or respondent, as appropriate, of the desirability of his or her obtaining legal advice in the matter,

(b) to provide an explanation to the claimant or the respondent of the legal consequences generally a failure to complete properly the step concerned or to follow properly the procedures generally under this Act may have in respect of a claimant's or respondent's rights or obligations as regards a relevant claim,

(c) to provide such assistance as the Board considers reasonable to the claimant or the respondent, as appropriate, in completing the step concerned properly or, as the case may be, re-taking that step in a proper manner.

(3) The respondent or respondents or, as appropriate, the claimant shall be informed by the Board, as soon as may be after the doing of that or those things, of the fact that one or more of the things referred to in subsection (2) (but not the doing alone of the thing referred to in paragraph (a) of that subsection) has been done.

(4) The Board shall ensure that the doing of the thing referred to in paragraph (b) or (c) of subsection (2) is accompanied by a statement to the claimant or the respondent, as appropriate, that the doing of that thing does not absolve the Board of the duty to cause an assessment of the relevant claim concerned to be made impartially.

(5) For the avoidance of doubt no statement contained in any medical report or other document furnished to the assessors in respect of the relevant claim concerned, of itself, gives rise to any duty on the part of the Board to do one or more of the things specified in subsection (2).

Parties to indicate whether or not they accept assessment.

30. —(1) Having made their assessment of a relevant claim the assessors shall reduce the assessment to writing and the Board shall serve the assessment on the claimant and the respondent or each of the respondents, together with the following notice.

(2) That notice is a notice requesting—

(a) in the case of a notice served on the claimant, the claimant to state to the Board in writing within 28 days, or such greater period as may be specified by rules under section 46 , from the service of the notice whether he or she accepts the assessment, and

(b) in the case of a notice served on a respondent, the respondent to state to the Board in writing within 21 days from the service of the notice whether he or she accepts the assessment.

(3) If—

(a) a next friend or, as appropriate, a guardian of the claimant or the respondent, (or, as the case may be, any one or more of 2 or more respondents) who is a minor or a person of unsound mind is acting on behalf of the claimant or that respondent or those respondents in the matter, or

(b) a committee of the claimant or the respondent (or, as the case may be, any one or more of 2 or more respondents) who is a person of unsound mind is acting on behalf of the claimant or that respondent or those respondents in the matter,

the notice referred to in subsection (1) shall also include a direction to the next friend, guardian or committee that he or she or it obtain legal advice from a person who is independent of him or her or it as to whether the assessment ought to be accepted.

(4) The reference in subsection (2)(a) to a statement as to the acceptance of the assessment is, if the claim concerned falls within subsection (3), a reference to a statement as to the acceptance (subject to the approval of the court under section 35 of the assessment) of the assessment.

Deemed acceptance or non-acceptance of assessment.

31. —(1) If the claimant fails to state in writing, in response to the notice under section 30 , within the period specified in it, whether or not he or she accepts the assessment he or she shall be deemed not to have accepted it.

(2) If a respondent fails to state in writing, in response to the notice under section 30 , within the period specified in it, whether or not he or she accepts the assessment, he or she shall be deemed to have accepted it.

Proceedings to be authorised if assessment not accepted.

32. —(1) In a case either—

(a) to which section 31 (1) applies, or

(b) in which the claimant or a respondent states in writing, in response to the notice under section 30 , within the period specified in it, that he or she does not accept the assessment,

it shall be the duty of the Board, as soon as may be after the expiry of that period, to issue to the claimant a document that contains the statement and operates to have the effect mentioned in subsection (3).

(2) Such a document is also referred to in this Act as an “authorisation”.

(3) An authorisation under this section shall state that the claimant is authorised to, and operate to authorise the claimant to, bring proceedings in respect of his or her relevant claim and such an authorisation shall be in addition to any authorisation issued under section 14 to the claimant.

Assessment binding on parties unless section 32 applies.

33. —(1) Unless one or other of the cases mentioned in section 32 (1) applies in respect of the assessment concerned, the assessment shall, subject to subsection (3) and section 35 , become binding on—

(a) the claimant, and

(b) the respondent or, as the case may be and subject to section 34 , each of the respondents,

on the expiry of the following period.

(2) That period is the period specified in the notice mentioned in section 30 (2)(a) that was served on the claimant.

(3) The assessment shall not be binding on a person who proves that, at the time of his or her acceptance, or deemed acceptance, in accordance with this Part, of the assessment he or she was not of sound mind.

(4) Subsection (3) does not apply if—

(a) in the case of a claimant, a next friend or a committee of the claimant is acting on his or her behalf, and

(b) in the case of a respondent, a guardian or a committee of the respondent is acting on his or her behalf.

Position of respondent or respondents who do not accept assessment.

34. —If there are 2 or more respondents as respects a relevant claim and one or more but not all of them makes a statement of the kind referred to in section 32 (1)(b) the following provisions have effect—

(a) the assessment made under section 20 , though accepted by the other respondent or respondents, shall not be binding on the respondent or respondents who made such a statement (the “non-accepting respondent or respondents”),

(b) section 32 shall have effect as if the following subsections were substituted for subsection (3):

“(3) An authorisation under this section shall state that the claimant is authorised to, and operate to authorise the claimant to, bring proceedings in respect of his or her relevant claim against only the non-accepting respondent or respondents (within the meaning of section 34 ) and such an authorisation shall be in addition to any authorisation issued under section 14 to the claimant (but this subsection is subject to the following subsection).

(4) Subsection (3) does not prejudice the operation of section 41 (which relates to the application of section 16 of the Act of 1961 (satisfaction by one wrongdoer discharging the other wrongdoer or wrongdoers)) and, accordingly, the proceedings authorised by that subsection to be brought—

(a) shall cease to be maintainable if the amount or amounts specified in an order to pay issued by the Board in respect of the relevant claim are paid to the claimant, or

(b) if only a portion of the amount or amounts specified in such an order to pay is paid to the claimant, shall be maintainable in respect of only the balance outstanding.”.

Approval of court required for certain assessments.

35. —(1) This section applies to a relevant claim where—

(a) a next friend or the committee of a minor or a person of unsound mind is acting on behalf of the minor or person in respect of the claim, or

(b) the claim relates to a proposed action for damages under section 48 of the Act of 1961,

and the next friend, committee or, as the case may be, the person proposing to bring that action for damages accepts, subject to the assessment being approved under this section, the assessment made under section 20 of the relevant claim.

(2) Where any enactment or rule of court requires any settlement of a relevant claim to which this section applies to be approved by the court then that enactment or rule of court shall apply, with the necessary modifications, to the assessment referred to in subsection (1) as if proceedings had been brought in relation to the claim, and the court shall have jurisdiction to approve the assessment accordingly on application in that behalf being made by the next friend, committee or other person referred to in that subsection.

(3) The court shall order that the costs of such an application by the applicant shall be borne by the respondent or respondents.

(4) Unless and until an assessment of a relevant claim to which this section applies has been approved by the court, the assessment, despite section 33 , shall not become binding on the claimant and the respondent or respondents.

(5) In this section “court” means the court which has jurisdiction to make an award of damages of the amount of the assessment the subject of the application for approval or, if 2 or more courts have jurisdiction to make such an award, whichever of them possesses the lesser or the least jurisdiction to make an award of damages in respect of relevant claims.

Authorisation to bring proceedings where assessment not approved.

36. —(1) If the court does not approve an assessment the subject of an application to it under section 35 , then it shall be the duty of the Board, as soon as may be after the court refuses to approve the assessment, to issue to the claimant concerned a document that contains the statement and operates to have the effect mentioned in subsection (3).

(2) Such a document is also referred to in this Act as an “authorisation”.

(3) An authorisation under this section shall state that the claimant is authorised to, and operate to authorise the claimant to, bring proceedings in respect of his or her relevant claim against the respondent or respondents who accepted, or, in accordance with this Part, is or are deemed to have accepted, the assessment concerned and such an authorisation shall be in addition to any authorisation issued under another provision of the Act to the claimant.

Certain statements, etc., not to prejudice claimant or respondent.

37. —(1) In neither of the cases referred to in subsection (2) shall the statement concerned of the claimant or, as the case may be, the respondent (or, as appropriate the deemed acceptance by the respondent) be capable of being used in evidence against the claimant or the respondent (or, in the case of the respondent, constitute an admission of liability by him or her) or operate in any manner to prejudice any proceedings.

(2) The cases referred to in subsection (1) are—

(a) a case in which a statement in writing, in response to a notice under section 30 , is made by a claimant that he or she accepts an assessment in circumstances where a statement in writing, in response to such a notice, is made by a respondent that he or she does not accept that assessment, and

(b) a case in which either—

(i) a statement in writing, in response to a notice under section 30 , is made by a respondent that he or she does accept an assessment, or

(ii) a respondent is deemed, by virtue of section 31 , to have accepted an assessment,

in circumstances where a statement in writing, in response to such a notice, is made by a claimant that he or she does not accept that assessment.

Enforceability of assessment.

38. —(1) Within one month after an assessment becomes binding on the claimant and the respondent or, as the case may be, each of the respondents the Board shall issue to the respondent or each of the respondents a document (in this Act referred to as an “order to pay”).

(2) An order to pay shall state that the respondent to whom it is issued is liable to pay to the claimant the amount of damages specified in the assessment together with the amount, if any, directed to be paid under section 44 or 45 or both those sections.

(3) If the assessment is binding on more than one respondent, the liability of the respondents for payment of that amount or those amounts shall be joint and several and an order to pay shall include a statement to that effect.