1. Legal issues associated with acquired brain injury
Ann McGarry, Solicitor
Nathaniel Lacy and Partners Solicitors

2. Overview A practical discussion of personal injury litigation
Time frames for deciding to making a claim
What circumstances give rise to a claim
Who is the defendant
What are the costs risks
The procedure for litigation
The compensation available
Enduring Powers of Attorney and pending changes in the law.
A “Personal Injury” defined in the Civil Liability Act 1961 as
“including any disease and any impairment of a person’s physical and mental condition”.

3. Statute of Limitations
Since 31st March 2005, no Personal Injury action caused by negligence, nuisance, breach of duty can be brought after the expiration of 2 years from the date on which:
The cause of action accrued;
When the claimant first had requisite knowledge.
There is a six year limit on Personal Injury actions arising from assault or battery.
There is a three year limit on Personal Injury actions arising due to a defective product, under the Liability for Defective Products Act The time frame begins to run from;
The date (if later) upon which the Plaintiff became aware or should reasonably have become aware of the damage, defect, identity of the producer.
Special rules apply for Minors (time begins to run once they turn 18) and people who lack the capacity to understand that they are able to make a claim for compensation. People with very severe brain injuries may lack capacity however this is something which requires specialist legal advice, a Court can decide that the normal time limits will not apply as they may lack litigation capacity but this type of exception should never be relied on without specialist legal advice.
Note: IB does not have the power to refuse a claim therefore acceptance of application by IB should not be comfort a solicitor as regards the limitation period. The defendant pleads the statute (i,.e that the limitation period has expired) otherwise the Court cannot consider if it is statute barred.

4. A Civil Action The Defendant owes you a duty of care.
A common law duty (not to be negligent towards you)
A statutory duty to take care (obligations imposed by law, for example Road Traffic or Employer Legislation)
The Defendant has breached that duty of care, acted negligently or without due regard to your safety, such as;
Business owners failing to identify and rectify hazards to the public on their premises.
Careless Driving.
Employers not providing appropriate protective gear to employees.
The action or failure caused the circumstances giving rise to the injuries/losses sustained by you.  The “But For” test.

5. Who is the Defendant? The party at fault is the obvious Defendant.
The second issue is whether the party at fault can afford to pay your damages / compensate you for your losses. Generally Personal Injury Litigation is initiated against an individual with a view to the claim being dealt with by that persons insurance company. It is not essential that the accident is covered by an insurance company however the issue of the defendants financial resources is one which must be considered as fundamental to the decision to enter into litigation.
There are certain circumstances where an injured person can be entitled to compensation where the Defendant is not identifiable or the Defendant is unlikely to have the resources to pay compensation.
Motor Insurer Bureau of Ireland (MIBI). Unidentified / uninsured drivers
Scheme of Compensation for Personal Injuries Criminally Inflicted.
Criteria applies and the time frames are unique in claims of this nature and as such early specialised legal advice should be sought.

6. Costs Every Client and every claim is unique. “No Win, No Fee”
Financing your claim
Defence costs

7. Litigation Procedure Initial consultation – what to expect
Injuries Board process
Stages in litigation
Delays

8. Negotiations/Awards and Orders to Pay
Two strands of compensation  
General Damages – pain, suffering and loss of amenity 
Special Damages – financial losses or expenses both retrospective and into the future.
Timing of receiving compensation
Lump sum v Periodical Payments (PPO’s)

9. Capacity and managing your affairs
Ward of Court
Assisted Decision-Making (Capacity) Act 2015
Agency arrangements

10. Enduring Power of Attorney
An Enduring Power of Attorney is a document that facilitates the appointment of a person (the Attorney) to make decisions on your behalf in the event that you become mentally incapable of managing your own affairs at some point in the future.
If someone in Ireland is mentally incapacitated (for example, because of illness, disability or a progressive degenerative illness), all of their assets and property are normally frozen and cannot be used by anyone else unless someone has Power of Attorney to deal with their property or money.
Scope of authority of an Enduring Power of Attorney
The Attorney may make certain personal care decisions, such as:-
Where and with whom you should live
Whom you should see and not see
What training and rehabilitation you should get
Your diet and dress
Inspection of your personal papers
Housing, social welfare and other benefits

11. Creating an Enduring Power of Attorney
The procedure for executing the enduring power of attorney is complex and requires the involvement of a Solicitor and a Doctor.
The enduring power can only come into effect when certain procedures have been gone through and the Courts have a general supervisory role in the implementation of the power.
The document creating the power must be in a particular format and must include the following:
A statement by a Doctor verifying that in his/her opinion you had the mental capacity at the time that the document was executed to understand the effect of creating the power.
A statement from you that you understood the effect of creating the power.
A statement from a Solicitor that he/she is satisfied that you understood the effect of creating the Power of Attorney.
A statement from a Solicitor that you were not acting under undue influence
At least 2 people must be notified of the making of an EPA, none of whom will be the Attorney.

12. NATHANIEL LACY & PARTNERS
About us Nathaniel Lacy & Partners is a leading Irish Firm of Solicitors with offices based in Monaghan, Meath, Sligo, Dublin and Donegal. We offer an extensive range of services and have a broad range of experience across different sectors. Our Personal Injury Team are available 24/7 to assist our Clients with emergencies or concerns. Contact us Phone: Web: