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 claims given the recessionary environment
a noticeable increase in advertising and promotion by providers of claims related services, particularly online, and
anecdotal reports of regressive practices more commonly known as ‘ambulance chasing’ or ‘claims harvesting’ (a practice of identifying accident victims e.g. online or presenting to repair shops or accident and emergency wards, for referral to personal injury lawyers).
Commenting, InjuriesBoard.ie Chief Executive, Patricia Byron said:

“Higher claims volumes without a matching increase in accidents, suggests that more people are making claims or are being prompted to do so. Whereas it is encouraging that we have not seen a dramatic recessionary spike – due in large part to the efforts of the Health & Safety Authority, the Road Safety Authority and Insurance Industry Anti-Fraud initiatives – increases are unhelpful at a time when individuals and businesses are seeking to contain insurance premiums.”

InjuriesBoard.ie also noted that it is in receipt of a number of issue-specific claims linked to injuries arising from Thalidomide and hip replacements (De Puy).

In July, the Irish Thalidomide Association announced that its members would be lodging individual applications for compensation with InjuriesBoard.ie. As liability remains in dispute between the parties, InjuriesBoard.ie opted to release these claims to the Courts immediately so as to avoid delays for long suffering Thalidomide survivors and their families.

Year to date, Injuries Board has received 605 claims in respect of the De Puy hip replacement recall. As a total of 3,500 implants are understood to have been fitted, further claims are likely to arise.

Commenting, on high volume, issue-specific claims, Ms Byron said:

“Currently when multiple issue-specific claims first arise, InjuriesBoard.ie is obliged to release these cases to the Courts until a compensation benchmark has been established. As litigation costs typically add over 50% to the cost of underlying awards this can mean additional costs of €500,000 per €1million in awards, even in circumstances where liability is not in dispute. Assessing these cases through a non adversarial process, such as InjuriesBoard.ie, could result in substantial savings.”

The average time taken by InjuriesBoard.ie to make an assessment is seven months. The average award made by the Board in the first six months of 2012 was €21,049 marginally down on the average for the same period in 2011 of €21,086.

By mid-year, InjuriesBoard.ie has delivered cost savings of over €22million in 2012 and estimated total cumulative savings (direct and indirect) of over €500million since mid-2004.

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 costs.’

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 imminent….

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 proceedings (personal injury) had been issued in The High Court it was the forum of sole competence to deal with the adjudication upon such matters. It contended that pursuant to Section 10 (1) (a) of the Act that the Commissioner should have taken account of the claimants motive for seeking the CCTV footage. (It was not contested that the claimant sought the material solely as a means of furthering her litigation). The Data Protection Commissioner was aware of the proceedings between the parties. It was contended by the Appellant that in the circumstances it would have been appropriate to proceed in seeking material by way of an Application for Discovery in The High Court pursuant to the personal injury litigation. The Appellant submitted that any attempt to seek disclosure outside The High Court is mistaken and inappropriate and an attempt to abuse the function of The High Court.

The Judgment by Hedigan J acknowledged that there was very little jurisprudence on Data Protection Law in the State. It referred to the developments in the UK and in particular the case of Durant .v. Financial Services Authority [2003] EWCA Civ 1746.

The Court in Durant accepted that the purpose of the act in entitling an individual to have access to information in the form of personal data is to enable him to check whether the data control processing of it unlawfully impinges his privacy and that it is not to assist him, for example to obtain Discovery of documents that may assist him in litigation or complaints against third parties.

The Respondent Data Commissioner noted that The Circuit Court Judge in the instant case had referred to the case law in England and held that it was not relevant as the English legislation conferred discretion as to whether or not to grant an order for access.

The Respondent noted that Section 26(3) (b) of the Data Protection Act 1988 (as amended) provide that where the Circuit Court has determined an Appeal from a decision made by the Data Protection Commissioner an Appeal may be brought to the High Court on a point of law against such a decision. The Respondent noted that no indication is given in the Act as to what test is to be applied in the Appeal.

The Respondent referred to Ulster Bank .v. Financial Services Ombudsman [2006] IEHC 323 which stated

“To succeed on this appeal the plaintiff must establish as a matter of probability that, taking the adjudicative process as a whole, the decision reached was vitiated by a serious and significant error or a series of such errors”.

The Respondent argued that that test had been subsequently followed by the Circuit Court in a number of Data Protection Appeals and by the High Court in Appeals from the Financial Services Ombudsman.

The Respondent noted that the Ulster Bank test was held by Birmingham J to be the test to apply in a Data Protection Appeal (see Nowak .v. Data Protection Commissioner (unreported 7th March 2012)) (please note that case is currently under Appeal to the Supreme Court).

It was submitted by the Respondent that the decision of the Data Commissioner did not contain a serious and significant error or a series of such errors and that the Circuit Court did not make an error of law in rejecting the Appeal.

It was asserted that the question for the Circuit Court and indeed for the High Court was not what it would have done if it had been faced with the complaint but whether the Commissioner exercised his own discretion in such an arbitrary manner as to render it a decision that no Commissioner could have reached. It was submitted that the answer to that question was inevitably “no”.

It was further submitted by the Respondent that if the drafters of the legislation wished to impose limitations for personal data in circumstances where litigation had been instituted they would have done so expressly.

The Respondent strongly refuted the Appellants submission of any attempt to subvert the jurisdiction of the Court.

Further and in addition the Respondent argued that a person’s right to access to personal data is a fundamental right which is expressly provided for by Article 16 of the Lisbon Treaty and thus, the Respondent argued it is submitted that any exemption to Data Protection law should be narrowly construed since it would be an exemption from a fundamental right.

The High Court in addressing the arguments on behalf of the parties noted that the Appellant had made no attempt in the Notice of Appeal to identify any points of law and stated “From the Courts perspective this is completely unsatisfactory. Simply saying that you are appealing the whole of a Judgment does not amount to a valid appeal on a point of law. An appeal on a point of law is just that. The point of law should be identified and the submissions should be directed to that point”.

The Court acknowledged that when pressed on the matter the Appellant did identify the point of law as follows

“Whether the existence of legal proceedings between a data requestor and a data controller precludes a data requestor making an access request under the Act”.

The Court therefore dealt with the issue on the very narrow point of law as identified by the Appellant above.

It held that the English case law relied on by the Appellant was not relevant on a number of grounds. The Court noted that in effect the Appellant was seeking to carve out a new exception in the Acts to the effect that whenever a data requestor has institute litigation against a data controller he or she is precluded from the data access request under the Acts.

The Court accepted the Respondents submission that if the drafter of the legislation wished to place such limitations on the right to access to personal data then they would have done so expressly.

The Appeal was dismissed.

The text of the Judgment can be found here :

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/enGB/Judicial%20Decisions/PublishedByYear/Documents/2012/ [2012]%20NIQB%2054/j_j_STE8508Final.htm

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: Click to read more.

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. Click to read more The Judgement.

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 UK is one) are under an obligation to change domestic law so that with effect from no later than the 21st December 2012, it complies with the ECJ decision.
3. In December 2011 HM Treasury launched a consultation on the Government’s proposed implementation of the ECJ Judgment.
4. In January 2012 the European Commission published guidelines on the application of the Directive in light of the Judgment of the ECJ.
5. The Judgment was absolutely clear and certain as regards new contracts, but some guidelines and clarification appear to be required in respect of what actually constitutes a new contract where there is an existing relationship between the parties, as if so often the case when dealing with insurance renewals.
6. Paragraph 9 of the European Commission guideline states “The Directive does not define the concept of a “new contract”, nor does it contain any reference to national laws as regards the meaning to be applied to such terms. This concept should therefore be regarded, for the purposes of application of the Directive, as designating an autonomous concept of European Union Law which must be interpreted uniformly throughout the union. This uniform interpretation corresponds to the aim of the Directive in the insurance field, which is to implement the unisex rule, after the expiry of the transitional period. The concept of a “new contract” referred to in Article 5 (1) is essential for the practical implementation of this provision. Diverging interpretations of this concept based on national contract laws would create a risk of different transitional periods delaying the comprehensive application of the unisex rule and also of an uneven playing field for insurance companies. This would undermine the objective pursued by the Directive of comprehensively guaranteeing the equal treatment of women and men across member states in relation to individuals’ insurance premiums and benefits from the same date and expressed in its Article 5 (1).”
7. Paragraph 10 states “The implementation of Article 5 (1) requires a clear distinction between existing and new contractual arrangements. The distinction must meet the need for legal certainty and be based on criteria that avoids undue inference with existing rights and preserve the legitimate expectations of all parties. The approach is in line with the Directives objective of preventing a sudden readjustment of the market by restricting the application of the unisex rule only to new contracts.”
8. Paragraph 11 states “Accordingly, the unisex rule pursuant to Article 5 (1) shall apply whenever (a) a contractual agreement requiring the expression of consent by all parties is made, including an amendment to an existing contract and (b) the latest expression of consent by a party that is necessary for the conclusion of that agreement occurs as from the 21st December 2012.”
9. Paragraph 12 states that “Consequently the following should be considered as new contractual agreements having therefore to comply with the unisex rule;
   (a) Contracts concluded for the first time as from the 21st December 2012. Therefore, offers made before the 21st December 2012 but accepted as from that date will need to comply with the unisex rule;
   (b) Agreements between parties, concluded as from the 21st December 2012, to extend contracts concluded before that date which would otherwise have expired.”
10. Paragraph 13 of the guidelines does however set out situations which should not be considered as constituting a new contractual agreement. They are:-
    “(a) The automatic extension of a pre-existing contract if no notice e.g. a cancellation notice, is given by a certain deadline as a result of the terms of that pre-existing contract;
    (b) The adjustments made to individual elements of an existing contract, such as premium changes, on the basis of predefined parameters where the consent of the policyholder is not required;
    (c) The taking out by the policyholder of top-up or follow-on policies whose terms were pre-agreed in contracts concluded before the 21st December 2012, where these policies are activated by a unilateral decision of the policyholder;
    (d) The mere transfer of an insurance portfolio from one insurer to another which should not change the status of the contracts included in that portfolio.”
11. Further to the consultation process of HM Treasury, the Government produced a response in March 2012 on the issue of the definition of a “new contract” the Government whilst understanding the desire for certainty on the issues confirmed that it could not provide further clarity on the interpretation of the Directive with any authority. The response stated “As there is no definition of a new contract between the gender Directive, it will ultimately be for the Courts to determine whether the definition used by member states is in keeping with the Directive and the ECJ Judgment. Any further guidance provided by Government would not necessarily align with decisions the Courts may make in future and would therefore only serve to provide false certainty to industry.”
12. The Government did however “acknowledge and agree with the European Commission’s view that significant disparity in how member states implement Judgment would not be beneficial and did recommend therefore that the guidelines produced by the Commission may be considered useful in helping to align interpretation of insurers across member states.”
13. The Government did not believe that there would be a significant problem in the United Kingdom “Because national law in this area is broadly in line with the interpretation suggested by the Commission.”
14. HM Treasury did acknowledge that some respondents noted that the treatment of automatic extensions to an existing contract (tacit renewals) may be one area where there is divergence.
15. Further in response the Government confirmed that it intended to implement the ruling by repealing paragraph 22 of the Schedule 3 of the Equality Act 2010 which will remove from legalisation the exemption from the unisex rule. This mirrored the exception in the gender Directive which had been outlawed by the European Court of Justice in March 2011.

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 dismissed.

The UK Supreme Court whilst holding that it has the jurisdiction to strike out a claim for abuse of process has declined to do so in an injury action where the claimant accepted that he had made statements of truth which he knew to be false and where the trial Judge had held that the evidence was sufficiently quoted to sustain a claim of fraud not only applying to civil standard but also the criminal standard.

The case of Fairclough Holmes Limited (Appellant) v Summers (Respondent) concerns an accident at work. The claimant suffered a fracture to his right scaphoid and a complicated ankle fracture.

In August 2007 the County Court gave Judgment for the claimant on liability with damages to be assessed at a later date. Between October 2007 and September 2008 the Defendant Appellant subjected the Claimant to covert surveillance which revealed that the Claimant was grossly exaggerating the effect of his injuries and incapacity to work.

The insurers did not show their hand at that stage and by December 2008 the Claimant served a Schedule of Loss claiming damages of £838,616.00 including a claim for loss of earnings up to October 2008. Having received that claim, the Defendant Appellant disclosed its surveillance evidence to the Claimant’s representatives and amended its Defence asserting that the claim was dishonestly exaggerated and should be struck out in its entirety. The Claimant subsequently served two further Schedules of Loss valuing the claim at a greatly reduced figure of approximately £250,000.00. All the Schedules of Loss were supported by “Statements of Truth”.

The trial on damages took place in January 2010.

The Claimant did not challenge the surveillance evidence. The Judge held that there was no doubt that he had suffered serious fractures. The ankle injury had required two arthrodesis procedures. The Judge found that the evidence established that the Claimant committed fraud and had deliberately lied to medical experts and the Department of Work & Pensions. The Judge having considered the evidence found that the Plaintiff would have been fit for work since the end of June 2007. The Judge awarded the Plaintiff damages in respect of loss of earnings up to that point in accordance with his findings. The total award to include general damages of £18,500.00 was £88,716.76.

The Defendant Appellant submitted that the Court had power to strike out the claim in its entirety on the grounds that it was tainted by fraud and was an abuse of process.

The Judge at first instance and the Court of Appeal held that they were bound be decisions of the Court of Appeal in Ul-Haq v Shah [2009] EWC CIV 542 and Widlake v BAA [2009] EWC CIV 1256 to refuse the Application on the ground that the Court had no power to strike out a statement of case in such circumstances.

The Supreme Court which unanimously held that the Court does have jurisdiction to strike out the claim for an abuse of process but in this instance chose to decline to exercise its power.

The Judgement was given by Lord Clarke. The Court considered in detail the provisions of the Civil Procedure Rules and the inherent jurisdiction of the Court which existed prior to those Rules coming into operation.

Having found that the Court did have the power to strike out a statement of case it did go on to rule that it should only exercise the power in very exceptional circumstances.

“The power to strike out a claim at the end of a trial should only be exercised if the court is satisfied that the party’s abuse of process was such that he had thereby forfeited the right to have the claim determined. This is a largely theoretical possibility. It must be a very rare case in which, at the end of a trial, it would be appropriate for the Judge to strike out a case rather than dismiss it in a Judgement in the merits in the usual way. The same is true where, as in this case, the court is able to assess both the liability of the Defendant and the amount of that liability.”

Moreover the Court considered that the conclusion was compatible with Article 6 of the European Convention on Human Rights stating that “it will only strike out the claim if this is a proportionate means of achieving the aim of controlling the process of the court when dealing with the cases justly. It is very difficult to think of circumstances in which such a measure would be proportionate. However they might include a case where there had been a massive attempt to deceive the Court but the award of damages would be very small”.

The Court rejected the submission on behalf of the Defendant insurers that unless exaggerated claims are struck out dishonest Claimants will be not be deterred. The Court insisted that there are many other ways in which deterrents can be achieved including making Orders for costs, reducing interest, proceedings for contempt in criminal proceedings and in appropriate cases where adverse inferences can also be drawn against the Claimant.

Ultimately the Court found that although the Claimant Respondent accepted making Statements of Truth which he knew to be false, as a matter of substantive law the Court found he did suffer significant injury as a result of the Defendant’s breach of duty and that it would not be proportionate or just to strike the claim out. The Supreme Court dismissed the Defendant Appellant’s Application.

The Judgement has typically been widely acclaimed by Claimant Lawyers. It is clearly a blow to Insurers who rightly have invested huge sums of money to combat fraud.

Next up for this blog is an analysis of this decision and the potential for a challenge to Section 26 of The Civil Liability and Courts Act 2004, in Ireland.