The advertisement was seen in the Irish Times and advertised the Personal Injuries Assessment Board’s claims service. The advertisement featured an image of a wet floor sign on which a stick figure had slipped. Text on the wet floor sign read “Watch Out: For a faster, cheaper option when making a personal injury claim”.
Further text beneath this image stated:
“PIAB, the impartial body for assessing personal injuries, is a faster and cheaper option when making a claim.”
“PIAB uses the exact same guidelines as the courts to calculate compensation, but our process is less stressful, years faster, and far, far cheaper.”
“On average, going to litigation takes four years and costs over €15,000 in legal fees.”
PIAB’s web address and other contact details were displayed at the bottom of the advertisement.
Two complainants were received against the advertising. Both complainants objected to the advertising on the grounds that it was misleading. They said the claim that PIAB’s claims service was the faster, cheaper option implied that there was an alternative, but were of the view that there was no other option, that it was untrue, when in fact a person wishing to pursue a personal injury assessment claim was required to do so through the PIAB process.
The advertisers explained that PIAB was a statutory body which was set up by the Oireachtas with the view to reducing the number of personal injury cases before the courts and that this was its legal mandate and that it was required to act in accordance with its statutory obligations.
In response to the complaints, the advertisers acknowledged that the PIAB application process (which was set out in Part 2, Chapter 1 of the 2003 Act) was mandatory, however the advertisers said that a review of the Act showed that the PIAB application process was only mandatory in certain personal injury cases. The advertisers emphasised that not all personal injury claims came to or were made to PIAB and that they were not required to be as a significant proportion were resolved by the parties before entering the PIAB process. The advertisers said that this was perfectly legal.
The advertisers clarified that the majority of claims were currently resolved outside the PIAB process either before or after their consideration in the PIAB system. They supported their contention sharing and quoting an extract of the Central Bank of Ireland (CBI) Private Motor Report 3 (November 2021) for claimants who settled injury claims in 2019 and 2020, as follows:
• 36% settled before PIAB
• 13% settled directly, after PIAB
• 15% settled through PIAB
• 34% through litigation, before a court award
• 2% through litigation, with a court award
They said it was not mandatory for PIAB to assess each and every claim and that a claim application to PIAB did not mean that the claim must be fully resolved or processed by PIAB. Elaborating on this, the advertisers said it was clearly not mandatory for people to make a claim via PIAB as a significant number of claims were made directly to the person or organisation they were made against and were resolved directly by the parties without coming to PIAB. Therefore, the advertisers said that it was clear that PIAB’s service was optional, and that the use of the word 'option' was correct within the advertisement.
Furthermore, the advertisers said that consent was required from a complained about body for PIAB to assess the matter and, if this consent was not received, PIAB then no longer had a role to play in the matter. They said that even if consent was received from both parties, they then had to accept the assessment and that if one party did not accept it, an authorisation was issued, and the parties could go forward to litigate the matter and incur legal fees (as set out in the advertisement).
The advertisers further referenced the CBI Report which showed that while initially applications for a claim must be made through the PIAB system, the resolution of claims in the overwhelming majority of cases occurred outside the PIAB system. The evidence for the PIAB process being faster and cheaper also came from the CBI Report which showed that cases involving damages of less than €100,000 (the vast majority of cases) resolved through PIAB involved legal fees of €665 while through litigation this involved legal fees of €15,235. A case through PIAB took on average 2 years whereas through litigation the average duration was 3.9 years.
Complaints Not Upheld.
The Complaints Committee considered the detail of the complaints and the advertisers’ response.
The Complaints Committee noted that the complaints concerned an advertising claim whereby the use of the terms “faster” and “cheaper option” were considered to imply that there was an alternative available to PIAB, whereas utilising the PIAB process was required to pursue a personal injury claim.
The Committee noted that assessing personal injuries and calculating compensation was at the core of the advertised proposition. They further noted that the claims made included the following statements about the advertised service: “a faster and cheaper option when making a claim.”; “uses the exact same guidelines as the courts”; “is less stressful, years faster, and far, far cheaper.”; “On average, going to litigation takes four years and costs over €15,000 in legal fees.”
The Committee considered that consumers would understand the statements collectively to refer to the routes and means by which compensation could be determined. These avenues could be by either PIAB or optionally by the Courts so that litigation through the Courts to secure compensation itself was not necessary, thereby creating an alternative. Allied to these factors, whilst a litigant had to first process a permissible claim through PIAB, the Committee also noted that there was the option available to subsequently pursue recourse through the Courts for a second and independent assessment of their claim, which also constituted an alternative the PIAB’s assessment for personal injuries. In the circumstances, the Committee did not consider that the advertising was in breach of the Code on the basis suggested in the complaints.
No further action required