Q: When you started out in the legal business, was there a concept of personal injury claims? How has it developed so rapidly?
A: Personal injury litigation is based on negligence. For example, if a driver is negligent on the road or an employer is negligent in providing an unsafe place to work and this causes an accident, and an injury, then this could give rise to a personal injury claim.
The law of negligence developed in the 1930s and personal injury litigation developed from there. The rise in the volume of litigation is linked to the volume of economic activity: more cars on the road and more people at work results in more possibilities for accidents. Quite rightly, people who are injured in an accident that is not their fault become more aware of their rights as time goes on. However, in relative terms, we probably have fewer serious personal injury cases relative to the level of activity than we had years ago, as cars have become safer and sound health and safety practices have become more widespread.
Q: Other countries, particularly the US and UK, have long since had personal injury claims. Was Ireland late catching on?
A: There are two different issues here: personal injury claims and advertising by lawyers who act in this field. Personal injury litigation has been a large feature of Irish law for many years, much like in the US and UK. However, advertising by lawyers was traditionally prohibited in all three countries. Lawyers were first allowed to advertise in the US in the 1970s, in the UK in the 1980s and in Ireland only in the 1990s. Of the three, Ireland has by far the most restrictive advertising rules.
Personal injury claims have been a feature of Irish law for as long as they have been in the US or the UK; but Ireland has been slower in allowing lawyers to advertise their services.
Q: Figures from the Personal Injuries Assessment Board for 2016 show a 1.5% rise in claims, 34,056 compared to 33,561 the year before, and 12,966 awards made compared to 11,734 in 2015. The Board says some of these were carried over from 2015, but what’s your overall comment on these figures?
A: With a return to normal levels of activity in the economy after the downturn, one would expect an increase in activity in all areas of personal injury litigation. As as a result, you are simply going to have more accidents.
Q: The figures do not include private settlements between claimants and insurance companies, which are not made public. Are they quite substantial?
The figures do not include cases settled before their claims are submitted to the Personal Injuries Assessment Board. We don’t have any idea what the volume of such cases might be as the only people who have this information are the insurance industry and they have repeatedly refused to release this information, despite being called on to do so. The reason for that, one suspects, is insurance companies do very well from these settlements. They settle for far less when they are dealing with accident victims not represented by a solicitor and who are unfamiliar with the system.
Q: They also don’t include medical negligence, as the Board doesn’t deal in those cases and victims must take their cases to court. As your firm also accepts medical negligence cases, what trends can you say have emerged in this area in recent years?
A: We are seeing increasing growth in our medical negligence practice due to many factors. We are bring increasingly recognised as nationwide specialists in this area and medical negligence is very technical and specialised. The overall number of claims are increasing, too, as a result of a number of factors driven by failings and resource issues in the healthcare system. Claims numbers are increasing as people are more inclined to question what has happened to them and demand explanations and answers when things go wrong.
Q: Regarding medical negligence, does some Irish legislation contribute to it? Especially regarding abortion legislation?
A: The issue of abortion legislation goes far beyond the scope of medical negligence. But where legal restrictions interact with healthcare decisions, particularly in emergency situations, things become exponentially more difficult to manage. This area of law is widely recognised as being in need of urgent reform.
The more pertinent issue for medical negligence is the lack of candour when things do go wrong. Professionals and organisations tend to close ranks and are not up front with patients about what happened. This, more than anything, can cause patients to seek redress, simply because they want to find the truth.
Q: What do you say about Ireland’s ‘compensation culture’?
A: There is no compensation culture. This lazy phrase is used in certain sections of the media and encouraged by the insurance industry, which has tried to create a certain hysteria around claims, alleging excessive levels of fraud are driving increases in premiums.
But, despite being repeatedly called upon to do so, the insurance industry does not seem to be able to produce evidence of widespread fraud. Certainly there are instances of fraud and these should be called out and prosecuted.
Q: Is the Irish public now hell-bent on claiming for anything they can?
No. The figures speak for themselves. There has not been a dramatic rise in claims, which fell when economic activity declined.
Today, more people know that if they have been injured by the negligence of a third party, they may be entitled to recover for the loss they suffer as a result. It is no windfall.
The Irish public are simply asserting their legal rights and this is unquestionably a good thing that no-one should have to apologise for.
Q: Do we have an ‘ambulance-chasing’ culture as exists in other countries?
No. The advertising regime in this country, and the professionalism of the vast majority of reputable solicitors, means solicitors simply can’t and don’t engage in practices that some would describe as ‘ambulance-chasing’.
However, some are inclined to characterise any activity in relation to personal injury litigation as ‘ambulance chasing’, in the same way they are quick to trot out lazy phrases like ‘compensation culture’. It’s just not fair or accurate.
Q: What would you say to someone who has been involved in an accident that was not their fault and is considering making a claim for compensation, but has no idea how to go about it?
Speak to a top solicitor specialising in the area as soon as possible and before you do anything else. Don’t delay, because you are up against a tight two-year time limit that may run out far faster than you think. The process can be subject to delays that you can’t foresee or predict.
Q: How do you see the future of personal injury claims in Ireland? Will there be tighter regulation?
The system of personal injury claims in Ireland is currently under review and we can expect changes in the coming years. It’s difficult to predict what those changes might involve and we are currently awaiting the report of a Personal Injuries Commission which was recently established by the Government to investigate the area and make recommendations.
The regulations that we have at present, both in terms of claimants and solicitors, are very tight and it is difficult to see how tighter ones would be justified.
Flor McCarthy is managing partner with McCarthy & Co Solicitors, a nationwide personal injury and medical negligence law practice with offices in Cork and Dublin.