Suing The Correct Defendant

Are you considering making a claim to Injuries Board for a personal injury you have sustained? Do you know the identity of the party that is responsible? There are some hidden pitfalls within this claims process for the unsuspecting litigant that can be avoided.

At Kent Carty we provide advice to clients who have sustained a personal injury and who wish to pursue a claim for recovery of damages, by:

• Providing advice to clients making an application to the Personal Injuries Assessment Board (Injuries Board
• Advising clients pursuing a personal injury claim through the courts
• Advising clients on who should be held responsible for the injuries that have been sustained
For more information on bringing a claim for personal injuries, please contact Cormac Carty or Gavan Carty. 

SUING THE CORRECT DEFENDANT

It is well documented these days that where a private individual is seeking compensation for a personal injury he or she has sustained, he or she must first make an application to the Personal Injuries Assessment Board (Injuries Board) setting out the circumstances of the injury and the identity of the party whom they believe is responsible. (Due to the complex nature of this procedure, it is advisable that this be done through the individual’s solicitor – to see the judgement of Mr. Justice MacMenamin in the High Court and Ms. Justice Denham in the Supreme Court on this point, click here). If this other party does not want the matter assessed by Injuries Board, Injuries Board will issue an Authorisation to the individual to bring a claim in court against this other party. On the other hand, if this other party consents to the assessment, Injuries Board will then assess the injury and issue a recommendation of what it considers to be the correct monetary value of any compensation that should be made to the individual. Both parties will then be asked if they wish to accept Injuries Board’s assessment of the compensation. If either party does not wish to accept this figure, Injuries Board will issue an Authorisation to the individual (the Plaintiff) to bring a claim in court against this other party (the Defendant).

A significant number of individuals these days do not engage Solicitors until after the Injuries Board procedure has completed and an Authorisation has issued. This delay in properly engaging with solicitors can create problems further down the line for the individual Plaintiff, as set out below. It also worth noting that an Individual who is successful in his/her claim in the courts for the recovery of damages for a personal injury, may recover the costs of instructing and engaging solicitors. 

After an Authorisation has issued, the Solicitors acting for the Plaintiff will institute proceedings against the Defendant (against whom the Authorisation has issued) for the personal injuries sustained, whereupon the Defendant will be called upon to enter a Defence to any claims that are being made against it. As is often the case, such a Defendant may seek to lay the blame elsewhere. For example, if an employee is suing his employer for a personal injury sustained during the course of his employment, the employer may claim that the injury was as a result of the action of some other party (like a sub-contractor) who was engaged on the employer’s premises at the time of the injury, and therefore not their responsibility.

This is all well and good, and in the normal course such other party would usually be joined as a Co-Defendant or Third Party to the proceedings that have already been instituted. 

However a recent High Court decision in the case of Sherry V Primark Limited and Grosvenor Cleaning Services Limited (decision of Mr. Justice O’Neill dated 19th March 2010) outlines some problems that may arise for the Plaintiff who is seeking to bring a claim against any such possible Co-Defendant.

In that case it was held that before any party can be joined as a Co-Defendant in any action, an Authorisation must first issue against that party from Injuries Board. Therefore, a Plaintiff seeking to rely on his entitlement to join a party as a Co-Defendant to an action already in existence is no longer so entitled, and must pursue such Co-Defendant through Injuries Board in the normal course. 

This can create problems for Plaintiffs under the Statute of Limitations. 

For personal injuries, the Statute of Limitations states that there is only a two year window (commencing from the date of injury or the date of discovery of the injury) in which an injured party may bring a claim against such party they feel is responsible (although once an application is made to Injuries Board, the clock under the Statute of Limitations stops ticking, and only re-commences ticking 6 months after an Authorisation issues).

As you can see, an unfortunate situation may arise whereby the Plaintiff, through no fault of his or her own, may be statute barred from bringing a claim against this Co-Defendant (possibly the correct Defendant) where an application to Injuries Board has not been made within the two year time frame.


The Sherry decision reinforces the right of individuals to be entitled to legal advice when engaging with Injuries Board (pursuant to the recent decision in Declan O’Brien vs. Injuries Board, Ireland and the Attorney General) and also highlights the possible pitfalls that may befall an individual commencing in litigation without first obtaining the proper legal advice. 

To view the full text of the decision in Sherry v Primark Limited and Grosvenor Cleaning Services Limited please click here.

For more information on any of the issues above or on bringing a claim for personal injuries under the Personal Injuries Assessment Board please contact Cormac Carty or Gavan Carty.