News and Updates

Passenger in Drunk Driver vehicle failing to wear seat belt found 40% responsible for own injuries.

In the case of Gallagher v McGeady the Irish High Court ruled that the Plaintiff was guilty of contributory negligence in the amount of 40% for allowing herself to be a passenger in a car where the driver had consumed alcohol, and for not wearing a seatbelt, causing injury.   Ryan J had heard from Counsel that in cases where the passengers allowed themselves to be carried by persons under the influence there are decisions ranging from 30% to 50% Contributory Negligence, and in the worst case scenario there is precedent of up to 55% Contributory negligence for failure to wear a seatbelt. Unfortunately the judgement did not cite the relevant authorities quoted by Counsel in the case.   The leading case concerning a passenger in a vehicle driven by a drunk driver is Hussey v Twomey, a decision of the Supreme Court, reported by this blog here: http://laceysolicitors.typepad.com/insurance-law-ireland/2012/09/irl-recent-cases-in-pi-litigation-part-4-passenger-in-a-drink-driver-vehicle-the-case-of-hussey-v-twomey-and-others-20.html   The full judgement in Gallagher v McGeady can be read here:   http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/9451186981c135ea80257b340055c097?OpenDocument    Damian McGeady, Lacey... read more

Six Foot Plaintiff too tall to be struck on head by wing mirror. Case Dismissed.

  In the case of O'Connor v Laffin the High Court in Dublin dismissed an action by a plaintiff who claimed he had been injured when struck by a wing mirror of a passing van.  In listing his reasons for doubting the reliability of the plaintiff’s evidence, the O'Neill J stated that “having regard to the fact that the plaintiff is described as over 6ft in height, it would seem to me to that it would have been impossible for the plaintiff to have been hit at the back of his neck, shoulder or head area if he was walking across the roadway, as he described it. Had he been stooped, he could not have been hit by the wing mirror at all as other parts of his body would have been impacted with the side of the vehicle. The plaintiff was probably walking reasonably upright in which case it would have been simply impossible for this wing mirror to have struck him where he says it did.”    The full judgement can be read here:   http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/08133e32290f02bf80257ae5004f88f7?OpenDocument  Damian McGeady, Lacey... read more

CIVIL LIABILITY AND COURTS ACT 2014- FIRST CONVICTION FOR FALSE AND MISLEADING EVIDENCE

A Claimant who knowingly gave false or misleading information to a solicitor at his home in an affidavit in the course of Personal Injury proceedings has been the first to be convicted under the provisions of the Civil Liability and Courts Act 2004. Sections 14 & 26 of the Act are reproduced below Verifying affidavit. 14.—(1) Where the plaintiff in a personal injuries action— (a) serves on the defendant any pleading containing assertions or allegations, or (b) provides further information to the defendant, the plaintiff (or in the case of a personal injuries action brought on behalf of an infant or person of unsound mind by a next friend or a committee of the infant or person, the next friend or committee) shall swear an affidavit verifying those assertions or allegations, or that further information. (2) Where the defendant or a third party in a personal injuries action serves on another party to the action any pleading containing assertions or allegations, the defendant or third party, as the case may be, shall swear an affidavit verifying those assertions or allegations. (3) Where a personal injuries action is brought on behalf of an infant or a person of unsound mind by a next friend or a committee of the infant or person, an affidavit to which subsection (1) applies sworn by the next friend or committee concerned shall, in respect of assertions, allegations or further information, of which he or she does not have personal knowledge, state that he or she honestly believes the assertions, allegations or further information, to be true. (4) An affidavit under this section shall be... read more

How does the Court approach future loss of earnings where the Injured Party has a sporadic earning history?

In the case of Richardson -v- Premimionas & Ors Peart J in the Irish High Court addressed the issue where the challenge for the court in assessing the damages due to the plaintiff was that the work, as a scenic painter on the set of films, was of a specific and sporadic nature, with his pay ranging from €55,000 in one year to only €8500 in another. In assessing damages, Peart J. stated “In arriving at a fair methodology for calculating a loss, I must take into account the sporadic nature of the work concerned… Accordingly I intend to begin from a headline annual average earnings of €36,000, rather than take the best of the years 2007-2011… If one was to work on the basis that in the future the plaintiff was likely to be able to earn a figure of €25,000 per annum, the capitalised loss to age 65 is €114,405.” The Judge awarded a figure on the basis of a clear and pragmatic approach, which should be of interest to practitioners. The full judgement can be read here:... read more

IRL Supreme Court allows an appeal to appellants seeking to set aside a third party notice.

  O’Byrne v Michael Stein Travel Ltd & ors The court ruled that the learned trial judge erred in law in failing to have regard to the inordinate delay on the part of the respondent in seeking to join the appellants as third parties, and to the failure of the respondent to give an explanation for the delay. O’ Neill J in the IRL High Court had previously stated that the case against the appellants who, as the parents of the plaintiff who was a minor at the time of an accident on holiday, had been issued with a third party notice, was one of substance and that there was no prejudice. He held that to strike out the third party notice against the appellants would be disciplinary and that, referring to words of O’Flaherty J., orders should not be made for disciplinary purposes. The Supreme Court accepted the submissions of the appellants that there was a considerable delay in issuing the motion to join the appellants as third parties. They sought to set aside the third party proceedings under Order 16, Rule 8 which states that the third party proceedings may at any time be set aside by the Court. They held that the respondent did not set out any details as to why the delay had occurred, or any excuses for the delay and stated that there needs to be evidence as to the reasons for, and excuses for, a delay. This was absent in the case. The onus lay on the respondent, but no explanation for the delay was given. The full judgement can be read... read more

Monetary jurisdiction of District & Circuit Courts to increase from 3rd February 2014

As and from 3rd February 2014 the new monetary jurisdictions will be as follows: – the jurisdiction of the District Court in civil proceedings will increase from €6,384 to €15,000 – – the jurisdiction of the Circuit Court in civil proceedings will increase from €38,092 to €75,000, except in personal injuries cases where a reduced increase of €60,000 is introduced. We understand that the Minister intends to introduce new District Court Rules including: – District Court Scale costs – new Superior Court Rules – new Fees Orders for all courts in January 2014 (court fees are unlikely to be reduced) It is likely these changes too will be effective as and from 3rd February... read more

IRL High Court rules installation of a glass door which caused injury was not negligence.

IRL High Court rules installation of a glass door which caused injury was not negligence. _________________________________________ Newman -v- Cogan & Anor _________________________________________ O’Neill J ruled that that the defendants had not failed, pursuant to s. 3 of the Occupiers Liability Act 1995, to take reasonable care in respect of the plaintiff, a visitor on the premises, to ensure that the plaintiff did not suffer injury or damage by reason of any danger existing on the premises after the plaintiff suffered the loss of an eye due to shards of glass entering her eye when a door pane was smashed. The plaintiff sought to rely on the case of Wells v. Cooper [1958] 2 Q.B. 265, a decision of the United Kingdom Court of Appeal in which it was held as follows as revealed in the head note:- “Held dismissing the appeal, (1) That on either ground of action the duty owed by the defendant to the plaintiff was a duty to take reasonable care for safety. (2) That, in the case of such a trifling domestic replacement, a man of the defendant’s experience was justified in undertaking it himself. (3) That the degree of care and skill required of a householder undertaking his own repairs was to be measured not by reference to his own degree of personal competence, but by reference to the degree of care and skill which a reasonably skilled carpenter might be expected to apply to the work in question. (4) That, since the defendant, a reasonably competent carpenter, was doing his best to make the handles secure, he must be taken to have discharged... read more

IRL High Court rules that there was no negligence on the part of the defendants after the plaintiff claimed that she had slipped on some oil outside a petrol station.

  De Cataldo -v- Petro Gas Group Ltd & Ors As a result of a slip outside a petrol station, the plaintiff claimed she suffered a serious injury to her left pelvis, hip and sacrum area which had the effect of disabling her for a prolonged period of time from a variety of normal activities, namely, work for about three months, and a host of domestic activities for upwards of three years.    In respect of this latter claim, i.e. her inability to do a variety of domestic chores, she claimed that she required the assistance of a carer or nursing assistant for three years, and she submitted, in these proceedings, a claim for over €73,000 for the cost of employing three carer/nurse assistants sequentially over the time involved. She updated that claim by the provision of further particulars to include the third carer, raising the claim from approximately €69,000 to €73,490.   When the proceedings came on for hearing, this claim was abandoned, as also was the claim for €10,175 for a variety of oils and other preparations. When challenged on the making of that claim, the plaintiff’s explanation was that this claim was put in by her solicitor contrary to her instructions. In response to this evidence, Mr. Burns S.C. for the defendants, put to the plaintiff the affidavit of Mr. John Synnott, her solicitor and the exhibit therein, grounding an application by Mr. John Synnott to come off record for the plaintiff.   This affidavit and the letter exhibited paint an entirely different picture. Mr. Synnott applied to come off record because he was unwilling to... read more

IRL High Court ruled that there was negligence on the Defendants’ part due to the absence of a handrail at a set of steps in a restaurant.

  McDonald -v- Frossway Trading as Bleu & Ors O’Neill J noted that anyone, lay or expert, who considered the relevant features of the location of the stairs, namely, in a busy city restaurant, in an ambiance where the lighting was relatively low, the rather dark colouring of the stairs, the absence of any clear markings on the nosings of the stairs, the normal noise, hubbub and conviviality that one would expect in a restaurant of this kind late at night, the fact that diners at that time of night would be enjoying themselves and may have consumed some alcohol and the constant movement around the restaurant of patrons and staff; these features would have brought about a realisation there was a high level of risk that a diner late at night would miss their footing on the steps and stumble.   The Court ruled that the first and second named defendants could not excuse their failure by saying they engaged an independent expert contractor when the danger posed by the absence of a handrail in this location must have been readily foreseeable to them as experienced restaurateurs. They did not need the advice or assistance of an expert to appreciate such an obvious risk.   The full judgement can be read here:   http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/64a7613b42c3fe8a80257aaf003bb2a7?OpenDocument   S.Major   Lacey... read more

IRL High Court sets out rules for Notices for Particulars in PI Actions

Agnes Armstrong v Sean Moffatt & Ors IRL High Court set out rules regarding notices for further particulars in personal injury cases, clarifying the extent to which the Civil Liability and Courts Act 2004 has altered practice in this regard. In his judgement, Hogan J was highly critical of the practice of seeking particulars above and beyond the realms of necessity, describing how the particulars sought in many cases had “reached something of an art form”. The Judge, in determining appropriate practice regarding this issue, set about analysing each of the particulars requested by the defendants in turn, and applying legal principles stemming from, and also predating the 2004 Act. He began by highlighting the changes enacted by the Civil Liability and Courts Act 2004 regarding pleading in personal injury cases. He outlined that Sections 10 and 13(1) of the 2004 Act outlined what information must be contained in a personal injury summons. He also highlighted the fact that Section 11 also allows the defendant in a personal injuries action to request the following further information, namely:- “(a) particulars of any personal injuries action brought by the plaintiff in which the court makes an award or damages, (b) particulars of any personal injuries action brought by the plaintiff which was withdrawn or settled, (c) particulars of any injuries sustained or treatment administered to the plaintiff that would have a bearing on the personal injuries to which the personal injuries action relates, and (d) the name of any persons from whom the plaintiff received such medical treatment…” In turning to the general principles regarding the criteria for allowing particulars, Hogan... read more

IRL High Court Dismisses Plaintiff’s PI action

Ryan J dismissed an action by the plaintiff in accordance with section 26 of the Civil Liability and Courts Act 2004 on the grounds (a) that he gave false or misleading evidence in a material respect which he knew to be false or misleading; (b) that he swore an affidavit under s. 14 of the 2004 Act containing knowingly false or misleading information in a material respect. The initial case as pleaded by the Plaintiff was that he fell from scaffolding at first floor level at a building site as a result of the scaffolding being defective. He claimed it was defective because there was no intermediate bar on the scaffolding and neither was there was a toe board where he was located. After it became clear however that the Defendant had obtained CCTV footage which painted an entirely different story and showed major discepancies in the Plaintiff’s evidence including the fact that there was in fact an immediate bar in place, and that he had gone over the bar, rather than tumbling through the scaffolding, this led to the Defendants making an application under s.26 of the Civil Liability and Courts Act 2004 to have the case dismissed, with the Court rejecting the Plaintiff’s explanation of these discepancies as being due to confusion caused by his accident. The court outlined the relevant parts of s.26 in the case as follows: “(1) If, after the commencement of this section, a plaintiff in a personal injuries action gives or adduces, or dishonestly causes to be given or adduced, evidence that-(a) is false or misleading, in any material respect, and (b)... read more

Apprentice Solicitor Required (Belfast)

Solicitor Apprentice/Legal Executive Wanted Lacey Solicitors are able to offer an apprenticeship for law students who have secured a place at either the Institute of Professional Legal Studies at Queen’s University Belfast or the University of Ulster Graduate School of Professional Legal Education. The successful candidate will be based at the Belfast Office of Lacey Solicitors in the Cathedral Quarter. The Successful applicant will be given full Apprenticeship training. The Apprenticeship begins in September 2013. The successful candidate may be offered an immediate start as a Legal Executive. The work will have an emphasis towards Defence Personal Injury work, for Insurance clients. Closing date for applications: Friday 7th June 2013 at 5pm. Applications shall be accepted by emailed CVs to damian@laceysolicitors.comvia laceysolicitors.typepad.com via... read more

Insurance Law Ireland

Solicitor Apprentice/Legal Executive Wanted Lacey Solicitors are able to offer an apprenticeship for law students who have secured a place at either the Institute of Professional Legal Studies at Queen’s University Belfast or the University of Ulster Graduate School of Professional Legal Education. The successful candidate will be based at the Belfast Office of Lacey Solicitors in the Cathedral Quarter. The Successful applicant will be given full Apprenticeship training. The Apprenticeship begins in September 2013. The successful candidate may be offered an immediate start as a Legal Executive. The work will have an emphasis towards Defence Personal Injury work, for Insurance clients. Closing date for applications: Friday 7th June 2013 at 5pm. Applications shall be accepted by emailed CVs to damian@laceysolicitors.com via... read more

Solicitor Apprentice/Legal Executive Wanted Lacey Solicitors are able to offer an apprenticeship for law students who have secured a place at either the Institute of Professional Legal Studies at Queen’s University Belfast or the University of Ulster Graduate School of Professional Legal Education. The successful candidate will be based at the Belfast Office of Lacey Solicitors in the Cathedral Quarter. The Successful applicant will be given full Apprenticeship training. The Apprenticeship begins in September 2013. The successful candidate may be offered an immediate start as a Legal Executive. The work will have an emphasis towards Defence Personal Injury work, for Insurance clients. Closing date for applications: Friday 7th June 2013 at 5pm. Applications shall be accepted by emailed CVs to... read more

IRL High Court. Judge refuses to strike out personal Injury case where there was inordinate and inexcusable delay. In the case of McCarthy v Brandon Constrution and Others, Ryan J refused to strike out the Plaintiff's personal injury action even where the court was satisfied that there had been inordinate and inexcusable delay. The court held that once satisfied that there was inordinate and inexcusable delay, that it should apply the the approach that was set down by The Supreme Court in Primor v Stokes Kennedy Crowley. "In Primor v. Stokes Kennedy Crowley [1996] 2 I.R. 459, the Supreme Court focused on whether the delay resulted in prejudice to the defendant in meeting the claim. The Court set the bar high for a defendant applying for a dismiss, holding that the question of particular prejudice was central to the exercise of discretion and it also endorsed and emphasised the importance of the role of the defendant in relation to the plaintiff's delay. The Supreme Court held that the principles of law relevant to an application to dismiss an action for want of prosecution were that:- 1. the courts had an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice so required; 2. the party who sought the dismissal on the ground of delay in the prosecution of the action must establish that the delay had been inordinate and inexcusable; 3. even where the delay had been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice was in favour... read more

High Court Judge Frustrated at the use of Expert Witnesses in Personal Injury Action Mr Justice Charleton in his Judgement in Flynn v Bus Atha Cliath chose to comment on the role of expert witnesses called in road traffic collision personal injury cases. The Judge noted that in the case at hand, three expert witnesses were called to give evidence in respect of liability, being an engineer for the Plaintiff and one for the Defendant and an expert in driving for the Plaintiff. In addition, the Judge noted that five medical personnel were called in this “simple” case about bruising to a leg and a sore back. The Judge noted the benefit of experts in resolving specialised issues stating that, “the purpose of an expert witness is to enable the Court to be instructed on arcane disciplines which are outside the experience of a Judge or jury". The Judge noted however that in the case at hand at one point the court was informed by an expert of the average speed of the average person walking. The Judge indicated that this is something which is clearly common knowledge. The Jude went on to comment upon the type of expert evidence that should be given. He noted that in this case which concerned the speed of a bus and braking reaction times due to the presence of a pedestrian on a roadway, “that with the exception of making a calculation as to the speed of the bus by reference to landmarks passed on the video and the distance ahead of the child that was on the road, none of the... read more

IRL High Court Dismisses Personal Injury action where passenger on bus injured due to driver braking in an emergency In the case of Flynn v Bus Atha Cliath [2012] IEHC 398 Charleton J held that the plaintiff had been injured whilst rising from her seat to alight from the bus. The injuries were caused by the momentum of the vehicle changing dramatically due to the braking of the driver. The Judge accepted however that the drivers actions were entirely reasonable, a child having ran on to the road in front of the bus. He said "The courts cannot apply a counsel of perfection. The duty of care expected of a driver is a high standard but it is still to be measured by the reactions and expectations of reasonable men and women." He went on to conclude, "Nothing could have been done to avoid the accident to Mrs Flynn. The bus driver Mr Friel reacted correctly to a potential hazard to life. In the circumstances, the case must be dismissed." The full report is here:... read more

IRL High Court Assessment of Damages- Significant Injury- Psychiatric Injury- change in personality and its effect on earning capacity- Application of Reddy v Bates- Consideration of Cap on General Damages In the case of Fagan v Griffen, the court had to assess damages where the Plaintiff had suffered significant injury. The Plaintiff is 32 years of age. He is an engineer with a Degree from Trinity College, Dublin. He had no memory of the incident, and had suffered from amnesia for a number of weeks. He sustained a serious head injury, fracture of the sternum, minor lung contusion and abdominal injuries. He underwent a number of operations whilst hospitalised. He had been left with some scarring although the scarring formed very little as regards the case. He had suffered from double vision which had persisted for some time and was suggestive of a significant closed head injury which led to fourth cranial nerve palsy on the right hand side which had improved. He was left with a clicking sensation in his ankle and had some difficulty with his gait. He had suffered some soft tissue injury to his back, had lost a front tooth which was repaired and a noted diminution in the senses of taste and smell. Although his physical injury was significant, it was agreed that the Plaintiff had made a remarkable recovery. The main area of contention in the case was the issue of the Plaintiff’s psychiatric injury and whether his personality had been changed as a result of the incident. Having heard substantial evidence, the court found that the Plaintiff’s personality had indeed changed, and... read more

The best opening line of a Judgement? I liked this from Hogan J in a recent Irish High Court action. "It might seem surprising that litigation presently pending in the District Court of Denver, Colorado (“the Colorado litigation”) concerning a disputed share purchase contract of the shares of an oil company registered in St. Kitts and Nevis and which is currently operating in Belize should give rise to an application in this jurisdiction for evidence to be taken on commission of an investigative journalist and a former theologian who specialises in the investigation of cults." Interested? Read the full Judgement here: http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/c3e97a3431eafee580257a7e003ea900?OpenDocument... read more

Are you looking for a recent text book on Insurance Law? Try Alison Padfiels's Insurance Claims, reviewed here, by The Student Law Review... read more

GB: ABI argues that Damages uplift may cost £300Million. Following from my last post regarding the Court of Appeal decision Simmons v Castle [2012] EWCA Civ 1039, I note that the matter was the subject of submissions before the Supreme Court in the last number of days. The ABI appealed the Court of Appeal decision that the Jackson 10% uplift should be applied to all personal injury awards from April 2013 to include cases launched before that date. Insurers submitted that defendants stand to lose more than £300m if claimants are given the ‘windfall’ of a risk-free rise in damages. The ABI said it accepted the uplift – a key element of Lord Justice Jackson’s review of civil litigation costs – in principle, but argued it should not apply to claimants already benefiting from conditional fee agreements. The Association of Personal Injury Lawyers which was also not a party to the Court of Appeal case told the panel of judges that damages were already too low, and that the uplift was intended to address this problem, rather than offset the changes to CFAs. A decision is... read more

GB: Do Defence Solicitors need to advise Insurers to raise their Reserves in PI Cases? Beware the 10% rise in General Damages. The GB Court of Appeal in Simmons v Castle [2012] EWCA Civ 1039 took the opportunity to announce an increase in General Damages in most Tort actions from 1st April 2013. The rise is on foot of the recommendations of Sir Rupert Jackson contained in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. One of the fundamental features of the recommendations was an envisaged rise of general damages of 10%. The Court of Appeal ruled that the uplift should be applied to all personal injury awards from April 2013 to include cases launched before that date. The Association of British Insurers (ABI) although not a party to the action, has appealed the decision. A spokesman for the ABI said: ‘At the moment this upsets the balance that was intended by the Legal Aid, Sentencing and Punishment of Offenders Act. We have always known about the 10% uplift, but it was supposed to be balanced by a reduction in legal... read more

IRL: Injuries Board release 2012 Interim report. Worryingly there appears to be anecdotal evidence of Claims Farmer 'Ambulance Chasers' moving in on the Irish PI system. The Practice is widespread. The full text of The Injuries Board Press Release is below: INJURIESBOARD.IE INTERIM REPORT 2012 Modest but consistent rise in new claims: Recession, aggressive promotion and 'ambulance chasing' likely causes New issue-specific claims emerging – Thalidomide and DePuy InjuriesBoard.ie, today Wednesday, 26th September, 2012 released details of its work in the first six months of 2012. Data for the period shows a gradual but consistent increase (4.1%) in claims volumes compared to the same period in 2011. Though not the recessionary spike that some had predicted, the increase warrants ongoing monitoring as there is little evidence of a matching increase in accidents. The period also saw the emergence of issue-specific claims linked to Thalidomide and De Puy hip replacements. In the six months to June, Injuries Board.ie received 14,669 claims, an increase of 4.1% on the comparable period in 2011. Awards totaling €109.04 million were made in respect of 5,180 personal injury claimants. Motor accidents continue to account for 59.4% of personal injury claims with public liability and employer liability accounting for 27.2% and 13.5% respectively. This reflects a slight increase in public liability volumes and a slight reduction in the volume of workplace claims (circa. 1%), consistent with ongoing lower numbers at work. The rising claims trend has continued into the second half of 2012. Though it is difficult to be definitive, anecdotal evidence suggests a mix of contributory factors including: tendency for claimants to pursue lower value... read more

IRL: Discovery by other means. Does the existence of legal proceedings between a data requestor and a data controller preclude a data requestor making an access request under the Act? In the case of Bus Atha Claith/Dublin Bus (the Appellant) .v. The Data Protection Commissioner (the Respondent) the High Court considered an Appeal from the decision of the Circuit Court which had upheld a decision of The Data Protection Commissioners to issue an Enforcement Notice requiring the Appellant to prevent a copy of CCTV footage to a personal injury claimant. The claimant had allegedly fell on a bus. She made an application to the Injuries Board. She also made an access request pursuant to Section 4 of The Data Protection Act 1988 (as Amended) for release of CCTV footage of the incident. Her solicitors had previously attended at the Office of the Appellant and viewed the CCTV footage. The Appellant rejected the Application on the grounds that any such information was prepared in anticipation of potential litigation and was as such privileged. The personal injury claimant notified the Data Protection Commissioner who instigated an investigation into the matter. Shortly after a Personal Injury Summons was issued in The High Court by the personal injury claimant. The Data Protection Commissioner subsequently issued an Enforcement Notice requiring the Appellant to provide a copy of the CCTV footage to the alleged injured party. The Appellant appealed the decision to The Circuit Court which upheld the decision of The Data Protection Commissioner. Bus Atha Claith/Dublin Bus Appealed that decision to The High Court on a point of law. The Appellant submitted that once... read more

NI High Court dismisses injury claim against local Authority- Child injured at bonfire site morning after bonfire. This is an interesting case. Mr Justice Stephens accepted the novel Defence of the local Authority that they were prevented from accessing a Bonfire site (which was clearly their property) to make it safe, due to the threat of intimidation/violence from those at the site of the smouldering bonfire. Unfortunately a 12 year old child suffered a very serious eye injury from a firework left at the site. His case was dismissed. You can access the Judgement here: http://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents/2012/... read more

IRL Recent cases in PI litigation- Part 7 APPLICATION TO SET ASIDE THIRD PARTY NOTICE- Delay In O'Halloran v Fetherson & Ors Mr Justce McEochaidh refused an application to set aside Third Party Proceedings. Holding that the delay on behalf of the defendant who issued the proceedings not to be unreasonable, and that there was little prejudice to the Third Party, the application was refused. Although its not a PI case it is useful. The Judgement is here... read more

IRL Recent cases in PI litigation- Part 6 EXTENSION OF TIME TO SERVE PLENARY SUMMONS Mr Justice Herbert in Aherne v MIBI extended time to serve to serve a 2001 Plenary Summons where the the prejudice to the Applicant far outwighed any prejudice against the Respondent had the application been declined. There is extensive commentary on the precedent case law in the judgement here... read more

UK Insurers prepare for G-Day, as Gender equality rules kick in. 1. Article 5 of Council Directive 2004/13/EC of the 13th December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services (“The Directive”) regulates the use of actuarial factors related to gender in the provision of insurance and other related financial services. Article 5 (1) provides that, for new contracts concluded after the 21st December 2007, the use of gender as an actuarial factor in the calculation of the premiums and benefits must not result in differences in individuals premiums and benefits (“The Unisex Rule”). Article 5 (2) provided for derogation from this rule by allowing member states to maintain proportionate differences in individuals premiums and benefits were the use of gender was a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data. 2. The European Court of Justice (“ECJ”) was asked to rule on a challenge from a Belgian Consumer Association asking whether the exemption in Article 5 (2) of the Directive was compatible with the prohibition under discrimination on the grounds of gender enshrined as a Fundamental Right of the European Union. In the case the ECJ ruled that exemption was invalid. It granted a transitional period of relief for implementation. The transitional period ends on the 21st December 2012. From then, it will be unlawful to use gender related factors for determining premiums and benefits under insurance policies. National Governments of member states who opted to apply Article 5 (2) of the 2004 Directive (of which the... read more

Fraud and Personal Injury in Ireland. Developments since the introduction of Section 26 of The Civil Liability and Courts Act 2004 One of the most significant changes in the Law as envisaged by the Civil Liability and Courts Act 2004 was the introduction of specific provisions in respect of misrepresentation of claims. Sections 14, 25 and 26 of the Civil Liability and Courts Act 2004 were enacted for the purpose of discouraging plaintiffs in personal injury actions and making false, dishonest and exaggerated claims for damages. Section 14 of the Act requires all parties to personal injury actions to swear Affidavits verifying the assertions and allegations contained in the pleadings. Section 14 (5) of the Act provides that it is a criminal offence for a person to swear a verifying Affidavit which is false and misleading in any material respect when the person swearing the Affidavit knows that it is false or misleading. Section 25 of the Act provides that any person who dishonestly causes to be given or adduces (or dishonestly causes to be adduced) evidence in a personal injury action which is false or misleading in any material sense, shall be guilty of an offence. Section 26 of the 2004 Act provides as follows: “26. – (1) If, after commencement of this section a plaintiff in a personal injuries action gives or adduces or dishonestly causes to be given or adduced evidence that – (a) is false or misleading, in any material respect, and (b) he or she knows to be false or misleading, the Court shall dismiss the plaintiff’s action unless, for reasons that the Court... read more

IRL Recent Cases in PI litigation-part 5 NEGLIGENCE AND THE BURDEN OF PROOF In Mokom .v. Dublin Bus [2010] the High Court dismissed a claim for damages against Dublin Bus taken by a pedestrian who suffered life threatening brain injuries after she was struck by a bus. In this action the plaintiff appears to have stepped onto the road and been struck by the bus. She claimed that Dublin Bus was negligent in that the bus was travelling an excessive speed that it failed to stop, swerve or slow down to avoid the collision. She also further claimed that the bus failed to keep a safe distance from her and that there was a failure to keep a proper lookout for her presence on the roadway. Dublin Bus argued the plaintiff was the author of her own misfortunate and pleaded contributory negligence, that the plaintiff walked into the bus, failed to look before stepping off the footpath and onto the road, gave no indication of her intention and had no reasonable regard for her own safety. Notwithstanding the very serious injuries (the plaintiff suffered a brain injury) Mr Justice Quirke in agreeing to dismiss the action said it was inescapable that the plaintiff had been walking along a path when she suddenly turned and walked into the side of a bus within the space of three seconds, that it was regrettable that she could not remember the accident. The plaintiff’s claim was... read more
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