The chairman of the Personal Injuries Commission, Mr Justice Nicholas Kearns has said it is "horrific" that a shop keeper was asked to pay a €600 processing fee to allow a burglar sue him for an injury sustained while breaking into his shop.
The standard Personal Injuries Assessment Board (PIAB) letter was delivered after the burglar's solicitor contacted the shopkeeper requesting he accept responsibility for the injury to his client's scrotum.
However, the PIAB said the businessman did not have to consent to it assessing the claim, and therefore was not obliged to pay the fee.
Mr Justice Kearns, who stepped down as President of the High Court in 2015, said on Wednesday the case was terrible but suggested it is an outlier.
"It's horrific. There's no other way to describe it. That a citizen who has been through an experience like that, in order to defend a claim or meet a claim has to shell out €600 for the facility of having the matter processed through PIAB. It's a kind of an anomaly I would suggest," he told Sean O'Rourke on RTÉ Radio.
He said under the law, PIAB had no choice but to process the burglar’s claim, even if its staff found it distasteful.
“Under their terms of reference they do have to entertain it. That’s part of the menu of claims they have to deal with. They can’t deal with certain things, like cases where liability is an issue or negligence is an issue but they can deal with this kind of case. I don’t think they enjoy having to deal with it. I’m sure they don’t.”
Mr Justice Kearns said it is unlikely the burglar would have any success in his claim as the occupier of a property has no duty of care towards a trespasser.
He said an exception might arise if the occupier set some sort of trap for a burglar. This did not arise in the shopkeeper’s case.
“Where it’s a hidden danger like a carpet over a trap door where the person goes over the carpet and falls 20 or 30 feet onto spikes or broken glass...it’s a question of degree.”
On RTÉ’s Liveline programme on Monday, the unusual case was described by the Co Cavan business owner, who was identified only as Kevin.
He said three men had used a sledgehammer to break their way into his premises and were about to make their escape when a neighbour noticed suspicious activity and contacted gardaí.
Scrotum injury
When they arrived, the men climbed back inside the shop when it is believed the claimant injured his scrotum on a shelf or unit.
Kevin said he was told the man was brought to hospital but did not require a stitch. All three of the burglars, he told the show, had received six month suspended sentences, but the man suing him was in prison for a different offence.
In November, he heard from the man’s solicitor requesting he take responsibility for the accident. After ignoring that correspondence, Kevin subsequently received a standard contact from the PIAB - the statutory first port of call for injury-related insurance claims - seeking notice of whether he consented to it reviewing the case.
While that process incurs a €600 processing fee, a respondent is not obliged to consent, at which point it is no longer a matter for the PIAB and can, where a claimant decides, proceed to the courts.
Kevin said his solicitor had advised him to refer the matter to his insurance company and that he believes they are not consenting to accept responsibility.
Commenting on the case, a spokesman for the PIAB told The Irish Times recipients have 90 days in which to respond.
“If they don’t see the validity in the case they can certainly consider the matter with their insurers,” he said. “We are obliged to contact them early so they have time to consider the matter.”
Anyone taking a claim for damages must first process that through the PIAB which, where consent is given on both sides, will assess the nature of the damages and an appropriate level of compensation.
“When we receive a claim we are required by law to write to the person the claim is made against giving them the option of having the case assessed by PIAB, which is a low cost and quick system,” he said.
Solicitor Stuart Gilhooly said he believed such a case would be unlikely to succeed as the standard of proof would be far greater for a trespasser in a personal injury claim than someone in normal circumstances.
“There is also a more human factor in that a judge listening to a case like that is likely to have very little sympathy for the burglar,” he said.
