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Personal Injury Claims:
Procedure
Personal injury claims are becoming more and more widespread in all areas of business. Shipping is no exception. Claims can arise in many circumstances - for example, they can be brought by an employee at a ship/boat building yard, a visitor to a marina or a paying passenger on board a pleasure or fishing vessel.
In all instances, the first issue which needs to be addressed is that of the applicable time bar.
The time limit for commencing personal injury actions in England is governed by section 11 of the Limitation Act 1980. The general rule is that such an action can not be brought after the expiration of 3 years from either the date on which the cause of action occurred or the date of knowledge of the person injured (if later).
However, if the insured party was a passenger on a vessel when the personal injury occurred, the Merchant Shipping Act 1995 will apply. Sections 183 - 191 of this Act implement the Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 (the "Athens Convention").
The Athens Convention applies to international carriage by sea if the contract was made in or relates to carriage from or to contracting states1 (including within the British Isles), or if the ship in question is registered in a contracting state. It imposes a 2 year time limit for the commencement of proceedings to enforce any claim against a ship or her owners in respect of damages for loss of life or personal injury. (In cases involving personal injury, the 2 year limitation period commences from the date of disembarkation of the passenger.)
Should the contract of carriage not be governed by the provisions of the Athens Convention (since it does not fall within any of the categories mentioned above), the time bar will be governed by the law applying to the contract in question.
If the claim is to be commenced in the English courts, it will be governed by the Pre-Action Protocol for Personal Injury Claims.
The aims of the pre-action protocol are:-
- Earlier exchange of information;
- Better pre-action investigation by both sides;
- To put the parties in a position where they may be able to settle cases fairly and quickly without the need to resort to litigation; and
- To enable proceedings to be conducted efficiently, should litigation be necessary.
The protocol is intended to apply not only to claims concerned solely with personal injury (other than those involving clinical disputes, disease and illness) but also to all claims which include a claim for personal injury. It was designed primarily for cases in which the damages sought are less than £15,000. However, the 'cards on the table' approach advocated by the protocol is equally appropriate to many higher value claims. The spirit of the protocol should therefore be followed in all cases involving a claim for personal injury (other than those exceptions mentioned above).
The protocol provides, firstly, that the claimant shall send two copies of its letter of claim to the intended defendant(s). The letter should contain a clear summary of the facts, together with an indication of both the nature of any injury suffered and any financial loss incurred. It should also ask both for details of the defendant's insurer and that a copy of the letter be sent to that insurer (where appropriate).
The defendant should reply within 21 calendar days of the date of posting of the letter, identifying its insurer (if any). If there has been no reply by the defendant or its insurer within 21 days, the claimant will be entitled to issue proceedings.
The Defendant (or its insurer) has a maximum of three months from the date of acknowledgement of the claim to investigate. They should reply to the claim by no later than the end of that period, stating whether liability is denied and, if so, giving reasons for their denial of liability and enclosing those documents in the defendant's possession which are relevant to the issues.
(Where the accident occurred outside England and Wales and/or where the defendant is outside the jurisdiction, the periods of 21 days and three months are extended to 42 days and six months respectively.)
Finally, since it is a topic which concerns many of our clients, we include a brief note on the personal injury claims procedure in Ireland.
The procedure for processing all personal injury claims in Ireland (except those concerning medical negligence) is governed by the Personal Injury Assessment Board (PIAB). The PIAB's aim is to reduce the cost of personal injury claims by assessing compensation payable outside the courts.
However, the PIAB has no role in assessing liability: it will only assess the amount of compensation due to a person where there are no such issues in dispute.
Since July 2004 all personal injury claims arising from road traffic accidents, public liability and employer liability must, by law, be submitted for assessment to the PIAB.
Once the claim has been submitted to the PIAB, the PIAB has jurisdiction to deal with the claim only if the party against whom the claim is made (the respondent) consents to the PIAB's jurisdiction. (Consenting to the PIAB's jurisdiction does not prevent the respondent from disputing liability at a later stage should the PIAB authorize litigation.)
Once a case has been submitted to the PIAB, the limitation period within which litigation must be commenced is suspended from the date of the application to the PIAB until 6 months after the PIAB has authorized litigation.
The PIAB will authorize litigation if:-
- The respondent does not consent to the PIAB dealing with the case (i.e. disputes liability);
- The PIAB makes an assessment of quantum and this assessment is rejected by either the claimant or the respondent; or
- The PIAB decides that it should not make an assessment due to the particular complexity of the case.
The procedure is as follows. Firstly, the PIAB notifies the respondent of the application. If the respondent consents to the PIAB having jurisdiction, then the PIAB proceeds to make an assessment of damages. If the respondent does not consent to the PIAB dealing with case, the claimant will have to issue proceedings in the normal way.
If the PIAB makes an assessment of damages, this will be based on the Book of Quantum compiled by the PIAB's independent medical panel as a guideline to general damages comparable to those awarded by the Irish courts or achieved in settlement negotiations prior to the establishment of the PIAB.
The claimant has 28 days from the date of the service of the assessment to inform the PIAB whether the amount of the assessment is accepted or rejected. If the claimant does not respond, it will be deemed to have rejected the assessment and litigation will be authorized.
However, the respondent has only 21 days from the date of the service of the assessment to inform the PIAB whether it accepts or rejects the assessment. If the respondent fails to respond, it is deemed to have accepted the assessment.
If the assessment is rejected by either party, the PIAB must authorise litigation.
1Parties to the Athens Convention
Argentina; Bahamas; Barbados; Belgium; China; Croatia; Dominica; Egypt; Equatorial Guinea; Estonia; Georgia; Greece; Guyana; Ireland; Jordan; Latvia; Liberia; Luxembourg; Malawi; Marshall Islands; Poland; Russian Federation; Spain; Switzerland; Tonga; Ukraine; United Kingdom; Vanuatu; and Yemen.
If you have any queries concerning the above, please do not hesitate to contact Christopher Dunn, Mark Lloyd or Jo Manthorpe
July 2006
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