The Personal Injuries Assessment Board is not living up to its promise to curb 'compo culture', writes Paul Cullen,Consumer Affairs Correspondent.

You're walking down the street and you trip on the pavement. You break your arm arresting the fall and you're pretty shaken. You're angry too, because the pavement has been broken for weeks and the council failed to repair it.

At least you're not alone in your predicament; on an average workday, 100 people lodge personal-injury claims for slips, trips, crashes or other accidents.

In the past, you would have taken your case to a solicitor or you may even have been tracked down by an "ambulance-chasing" member of the profession. Getting a payout would have taken an average of three years, even when the council was admitting liability, and your solicitor's fees would have amounted to half as much again.

Then someone came up with a bright idea. Assuming liability is accepted by the other side, let's cut the lawyers out of the equation. Ditch the court hearings, the expert witnesses, the endless correspondence. Just decide the case on the basis of the medical reports, and pay out from a menu of agreed payments, ranging from roughly €20,000 for a broken finger to €197,000 for the loss of both arms.

Hey presto - reduced costs, quicker payouts and no nerve-racking appearances in the witness-box.

And so the Personal Injuries Assessment Board (PIAB) was set up in 2004 to great fanfare. Instead of traipsing through the courts for years, would-be claimants simply had to fill in a form, pay a €50 fee and have their injuries examined by a medical specialist. Most could expect an award within nine months. It was, the board promised, "a win-win solution".

It hasn't worked out so simply. As The Irish Times reported last week, claimants are running away from the new system in droves. Thousands have opted out in order to pursue their cases through the courts and nearly half of all awards are being rejected. The Irish Times article drew a large response that further confirms the unpopularity of the new system. Lawyers and people who have been through the PIAB system tell of unexplained delays, wasted applications, excessive costs, and mistakes on the part of the agency (see panel).

It is true that the PIAB has assessed over 6,500 cases since it was set up in mid-2004; the trouble is that these appear to be the less contentious cases, and most of the remainder are just as contentious as they were under the old system. These cases are simply "too hot to handle" for the PIAB, either because liability is contested, or because of the complexity, scale or ongoing nature of the injuries suffered. The board simply releases these cases to the courts system, but not before the files involved languish for long periods in the PIAB's office.

But this time has not been wasted, a board spokesman insists, because the claims are "in a different place from where they would be if at square one in the old system". Respondents are required to say quickly whether they are disputing liability and cases appear in the courts "in a more structured and straightforward fashion".

Even those who were well disposed to the PIAB when it was launched have become disenchanted. Solicitor John Flynn says he was in favour of the new system initially but now he doesn't think it is working.

"There were outrageous costs in the old system; you'd settle a case for €10,000, and the costs would be double that. But the PIAB isn't taking on the majority of cases, and in those it is dealing with, the costs and time involved have increased." Marcin Szulc, a Polish solicitor handling many personal-injury cases brought by compatriots who have suffered construction-site accidents, believes the PIAB is being unfair to his clients. "[ The PIAB] give €150 towards a medical report, yet most reports cost €300-350 on average. Some of my clients might have to undergo three or four medical examinations, so they're at a loss. Yet the PIAB uses the same doctors, so it knows exactly how much these reports cost."

In response, the PIAB spokesman said its reports do not necessitate a fresh medical examination and primarily involve the transcription of medical records and treatment. "We believe that doctors have found no difficulty in accepting the €150 for the type of report required. A claimant would only be out of pocket if the doctored delivered a report of a more elaborate examination than we requested."

Eamon Devoy, assistant general secretary of the Technical, Engineering and Electrical Union (TEEU), says the PIAB is not capable of dealing adequately with the complexities of industrial accidents.

"Two to three of our members are killed every year and many more suffer serious injuries at work," Devoy says. "Under the old system we were able to refer incidents immediately to our engineering and legal advisers for assessment to see if a case should be taken.

"If there was a firm basis for a case, it was prepared thoroughly and awaited its turn in the courts. While far from ideal, the process was clear cut and people knew they would eventually be seen."

The union has just steered its first test case through the PIAB, but having secured a satisfactory award for one of its members, the employer in the case has rejected the settlement. "As a result, we're back where we started and heading for the courts after a delay of over 12 months," says Devoy.

ONE OF THE reasons the PIAB came into being was to halt the "compo culture" that was clogging up the courts with often minor personal-injury claims. Around the same time, stiff new laws made the lodging of fraudulent claims an offence punishable by imprisonment.

But has the PIAB made a dent on our litigiousness, let alone our "compo culture"? The number of claims has dropped from 27,000 to 25,000 a year, hardly a huge fall. The PIAB, though, points out that the population has increased in this time, as has the number of cars on the road.

In some ways, the new system makes it easier, not harder, to make a false claim. There is no face-to-face contact in the PIAB system to compare with the harsh scrutiny of a courtroom and a bit of fibbing on its application form doesn't attract the same punishment as a false sworn affidavit might. It all comes down to the medical report, but in the case of complex injuries it can be extremely difficult to make a judgment solely based on a written document.

From the viewpoint of the taxpayer interested in cutting public expenditure, the PIAB remains a good idea, but it is being undermined from two directions.

The legal profession, which used to earn half a billion a year in fees from personal-injuries actions, is predictably cutting about the board and its achievements. It is clear that many claimants are rejecting their awards on legal advice, but while solicitors maintain their clients are getting bigger awards from the courts process, the PIAB believes the main reason behind these rejections is the solicitors' desire to recoup their legal fees.

There is evidence that the courts, when asked to adjudicate on post-PIAB cases, are making bigger awards than the PIAB was prepared to countenance. However, it is also apparent that insurance companies may also be pulling the rug from under the PIAB by making bigger settlements with claimants who rejected their original awards from the agency.