The following blog concerns the case of Carr v Olan & Doran [2012] IEHC 59 is authored by Adam Shaw.

Adam has been on work experience at Lacey Solicitors from Portora Royal School Enniskillen. Portoras past pupils include Oscar Wilde and Samuel Beckett, both famous past bloggers.

Aggressive driving sparks ‘road rage’ catastrophe! Plaintiff’s personal injury claim dismissed by Mr Justice Hogan in High Court hearing held on 15th March 2012.

The plaintiff Mr Carr, a keen motorcyclist and musician, suffered extensive injuries as a result of a dispute with another road user. The incident unfolded at midday on Tuesday 22nd January 2008, as the plaintiff made a chance encounter with the first defendant on a major roundabout. Mixed claims from both parties suggest careless driving from the other which resulted in evasive action required to avoid a collision. However, following both the plaintiff and the first defendant leaving the roundabout at their respective exits, the plaintiff took the decision to turn around his motorcycle and head in pursuit of the first defendant. Under these circumstances, one can only speculate why the plaintiff took such evasive action, despite already having given the defendant a few hand gestures to remember whilst at the roundabout!

That aside, evidence suggests, the plaintiff, foot to the floor, caught up with the first defendant who was already 250 metres in the opposite direction. Yet despite two lanes of oncoming traffic on the other side of the road, the plaintiff maintained pursuit of the first defendant and allegedly ‘thumped’ the driver’s window, as described by a witness, and banged on the wing mirror.

What happened next is how the accident occurred. As found by Mr Justice Hogan, in an attempt by the defendant to recoil away from the direction of the blow to the window of the car, the defendant may have inadvertently veered right in the heat of the moment. Evidence gathered from the Gardai accident report show evident damage to the right hand side of the defendant’s vehicle which strongly suggests that the defendant’s vehicle came into contact with the plaintiff’s motorcycle, causing it to bank and spin out of control.

Unfortunate was the second defendant, who was in an oncoming lane of traffic when the plaintiff’s motorcycle struck her car. In favour of the first defendant, she perhaps provided the most accurate witness account. She stated how prior to the accident there were no signs of aggression from the first defendant towards the plaintiff whilst driving. The first defendant explained himself that; at the time he was more confused and, indeed, scared by the sudden sequence of events. Therefore, conclusions can be drawn, as indeed like that of Mr Justice Gerard, that the defendant did not intentionally steer into the motorcycle and orchestrate the accident in an act of aggression.

Further to the defendant’s rescue came the court’s decision to use inter alia, the doctrine of ex turpi causa non oritur actio. In layman’s terms, this meaning that; on the assumption that the plaintiff did cross the constant white lines on the road, marginally or not, when pursuit of the defendant, then he was in breach of the Road Safety Act. This would mean the defendant would no longer have liability for the plaintiff’s sustained injuries as the plaintiff was already in breach of the law in the first place and is no longer, by law, entitled to compensation for his personal injuries.

All this taken into account, the court ruled that the plaintiff’s claims for personal injuries, which included a permanent loss of use in one arm, would be dismissed.

Finally, a long story cut short; the plaintiff displayed an uncharacteristic, sightless act of ‘road rage’ where the blame could only be laid firmly at his doorstep. As for the first and second defendants, their intentions were of the prevention of any such incident to occur.

Adam Shaw

KELLY .V. BON SECOURS HEALTH SYSTEM LTD [2012] IEHC 21 HIGH COURT AWARDS PLAINTIFF PERSONAL LITIGANT €90,000.00 IN PERSONAL INJURY ACTION AGAINST EMPLOYER

The Plaintiff who represented herself in these proceedings claimed damages for personal injury in respect of an incident in August 2004 when she twisted her back at work whilst carrying files. In addition the Plaintiff’s claim for injury included the loss caused by harassment, bullying, abuse, intimidation and discrimination in the course of her employment.

On the issue of the incident causing low back injury the Plaintiff claimed that she was forced to carry bundles of charts which were excessively weighty. The Defendant did not call evidence from the employer but from an Engineer who gave evidence that the volume in weights being carried by the Plaintiff was not excessive. The Engineer did agree however that the Manual Training Regulations were mandatory and that it was a breach of the statutory duty not to adhere to such Regulations (it appears that they did not so adhere).

Mr Justice Cross held that the Defendant was negligent and in breach of statutory duty in respect of this part of the claim. In terms of the claim for bullying and harassment the Court first sought to clarify some terms. It acknowledged that there was no separate tort of bullying or harassment and that the Defendant as an employer of the Plaintiff owed a duty of care not to expose their employee to injury and that one of the sub-aspects of this may be a question of bullying and harassment. The Court referred to the Judgment of Fennelly J. in Quigley .v. Complex Tooling and Moulding Limited [2009[ 1 IR where it was agreed between the parties to adopt the definition of “workplace bullying” contained at paragraph 5 of the Industrial Relations Act 1990 (code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 which states:-

“Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying”.

The Court also referred to the helpful decision of Herbert J. in Sweeney .v. Board of Management Ballinteer Community College (Unreported High Court, 24th March 2011) in which the Judge analysed a number of the instants which the Plaintiff relied on in her claim for personal injuries. Some were upheld and others not. The analysis which Cross J. in this case found to be most helpful was the following passage:-

“In my judgment a particularly vicious form of bullying involves isolating the victim in the workplace by influencing others by actual or suggested threats to their own interest and by undermining the victim’s standing in the organisation and amongst colleagues by disparaging references. In my judgment this was the first indication of a firm determination on the part of Dr C to brook no positive interference, as he saw it, by the Plaintiff in his management of the College”.

The Court also considered the United Kingdom Court of Appeal decision in Sutton .v. Hatton [2002] 2 AR 1, where the Court placed considerable emphasis on the employees obligations to inform the employer of difficulties being experienced and set out sixteen propositions for dealing with cases of bullying and harassment.

The sixteen propositions were adopted by Laffoy J in the case of McGrath .v. Trintech Technologies Limited [2005} IR 382.

In conclusion in setting out the law to be adopted when dealing with bullying and harassment cases Mr Justice Cross in this case found the best summary of the questions to be addressed where set out by Clarke J in Maher .v. Jabil Services Limited [2005] 16 ELR 233 which states as follows:-

“(a) had the Plaintiff suffered an injury to their health as opposed to ordinary occupational stress; (b) If so, was that injury attributable to the workplace and; (c) if so, was the harm suffered to the particular employee reasonably foreseeable in all the circumstances”.

The Court in this instance then examined the Plaintiff’s work history, her grievances, the grievance procedure and how it was dealt with by the employer to include post-suspension grievance procedures and ultimately mediation between the parties. The Court found and concluded that the Plaintiff believed that virtually every step taken by the Defendant was an attempt to bully, harass and intimidate her and that her view was coloured by her personality but that the Defendant’s were aware or ought to have been aware of this fact from a very early stage and ultimately that the Defendant’s must, subject to any defences that they may have be prima facia liable in the circumstances.

The Defence argued that the Plaintiff was guilty of contributory negligence, that she had failed to engage in the grievance procedure, that the Plaintiff had failed to mitigate her loss and that the Plaintiff’s case could not proceed for a number of her grievances due to findings made by the LRC and others. The Court found that there was no question of estoppel or res judicata arising and that there was no element of contributory negligence attaching to the Plaintiff in this instance.

The issue of quantum is very interesting and in particular how the Court dealt with the injury to the back. The Plaintiff had suffered a previous injury to her back in 1998 which lasted a few weeks and up to the accident in August 2004 the Plaintiff was an active person, swimming every day and dancing once a fortnight, doing gardening and generally participating in physical work. The Plaintiff was examined in May 2011, six years after the incident and was still complaining of pain in the lumbar region, the view being that the Plaintiff had pre-accident degenerative changes consistent with her age which were rendered symptomatic prematurely. The medical evidence was that if it were not for the accident the symptoms would likely to have arisen spontaneously within a number of years. The Court held that the Plaintiff was likely to go through the rest of her life with the knowledge of a back that was less than perfect and that it was quite possible that were it not for this instant that she would have had some flare up of symptoms at some stage and in those circumstances cross J. said;

“Doing the best that I can I would assess in respect of the Plaintiff’s back complaint, damage to include some damages for limitation for work availability at a modest level in the sum of €30,000.00”.

When dealing with the issue of the psychiatric injury the Court found that some of the symptoms were not related to the bullying but acknowledged that those attributable to the finding against the Defendant amounted to €60,000.00. The Court awarded €90,000.00 together with the Plaintiff’s expenses and outlays (no costs of course).

by Damian McGeady

The Supreme Court in Coffey v Kavanagh [2012] IESC 18 has allowed an Appeal in a claim for personal injuries arising out of an accident at work where The High Court awarded damages in full to the Plaintiff.

The Plaintiff was employed by the Defendant/Appellant as a Shop Manager. She alleged she was caused to trip over a box in the office area of the Defendant/Appellant’s premises and suffered a fracture to her wrist. She sued her employer by reason of the negligence and breach of duty in failing to provide her with a safe place of work and in causing the office area of the premises to become cluttered, unsafe and dangerous.

The Defendant/Appellant denied negligence and claimed that the injuries were caused at the Plaintiff’s own negligence in failing to have adequate regard to her own safety. The Trial Judge found entirely against the Defendant employer. On the issue of contributory negligence the Trial Judge held that the Plaintiff/Respondent was not guilty, and said;

“It has been contended on behalf of the [Appellant], that the [Respondent] was guilty of contributory negligence in failing to keep a proper lookout and that this negligence caused or contributed to her injury. I do not accept that contention. I accept the evidence of the [Respondent] … that during busy periods, the floor of the office area within the [Appellants] premises regularly became cluttered. I also accept [the Respondent] that she drew this to the [Appellants] attention from time to time and that nothing was done by the [Appellant] to reduce the risk of injury to the staff members by adopting a safe system. I do not accept on the evidence that the [Respondent] failed to keep a proper lookout. I accept her evidence that a hazard on the floor, which she could not identify, but which caused her trip, was probably either packing material or a tear in the carpet which caused her to trip and that she then fell over a box which was lying on the floor in an inappropriate place. I cannot see how she can, in those circumstances, be found to have caused or contributed to her own injury. Accordingly, I am satisfied that the [Respondent] is entitled to recover the full value of her claim”.

The Supreme Court noted that whilst the Trial Judge did not accept the contention that the Respondent was guilty of contributory negligence, he did accept the evidence of the Respondent that the floor of the premises regularly became cluttered and that she herself had drawn the problem to the attention of the Appellant.

It was submitted on Appeal by the Defendant/Respondent that insufficient weight was given by the Trial Judge to the evidence of the Appellant and his witnesses and that the Plaintiff/Respondents evidence was accepted uncritically and with an excess of weight in contrast to the treatment of corroborated evidence of the Defendant/Appellant. Further on the issue of contributory negligence that the Trial Judge failed to give adequate weight to the Defendant/Respondents role in the ongoing management of the office.

This is an interesting case. The Supreme Court was being asked to deal with the role of an Appellate Court in reviewing oral evidence given in The High Court. The Supreme Court relied on the decision by McCarthy Jury in Hay .v. O’Grady [1992] 1I.R. The Court had to deal with the issue of not having had the opportunity of seeing and hearing witnesses.

In Hay .v. O’Grady McCarthy J. said;

“In my judgment an Appellate Court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the Trial Judge. In the drawing of inferences from circumstantial evidence, an Appellate Tribunal is in a position as the Trial Judge”.

The Supreme Court in this instance was in a good position given the accepted facts of the case. The Plaintiff was familiar with the office. She had responsibility to keep her desk and area around it tidy. She knew of clutter. She had made a complaint previously. She knew of potential danger. She was clearing the office when the accident occurred. She had started packing and unpacked two of the boxes and while working something on the floor caused her to trip and she fell.

On the basis of the accepted facts alone and without the opportunity of hearing the evidence heard by the Trial Judge, The Supreme Court held that the Respondent was 25% contributory negligent, allowing the Appeal and consequently reducing the Plaintiff/Respondents award.

By Damian McGeady

The Supreme Court has dismissed an appeal on the Application of Section 26 of the Civil Liability and Courts Act 2004. In a Judgment delivered last week the Supreme Court dismissed the Appeal by the Defendant, Bus Eireann. The Defendant had sought the dismissal of the Plaintiff’s claim in its entirety on the grounds that the Plaintiff had fraudulently exaggerated her claim.

This is the second Supreme Court Judgment in as many months on Section 26 of the Civil Liability and Courts Act 2004, and the Court in this instance adopted the same approach. The first decision was Ahern v Bus Eireann [2011] IESC 44.

There is a heavy burden upon the Appellant in these cases and whether the Judge dismissed the claim or allowed it at first instance, it is clearly difficult to succeed on Appeal.

In his Judgement Mr. Justice Fenelly said; “In the absence of a finding from the Trial Judge that the Plaintiff, in this case had knowingly given false or misleading evidence, it is impossible for the Defendant to succeed. She was the Judge who heard all the witnesses, apart from those who gave evidence on commission, and, especially, heard the Plaintiff whose evidence was at issue. This Court cannot substitute itself for the Trial Judge in the assessment of credibility of witnesses”.

Whether you act for the Plaintiff or the Defendant, if a Section 26 Application is not favourable at trial, it would be wise, given the dictum of the Supreme Court in this case to think very long before appealing *(mindful of time limits, of course).

Obiter Dictum ; There is one other interesting matter arising from the Judgement. On the first line of the written Judgement Fenelly J. wrote;

“The defendant on this appeal seeks the radical remedy of the dismissal, in its entirety, of the claim of a plaintiff, who admittedly suffered serious injuries at its hands in a road traffic accident for which it admits liability”

Is it an insight to the thinking of the court to describe the provision of Section 26 as radical. I wonder is it good radical or bad radical?

IRL High Court Section 26 Application- Dismissal of Personal Injuries case- Review by Damian McGeady

FOLAN .V. Ó’CORRAOIN AND OTHERS

[2011] IEHC487

This is a personal injuries claim; The Plaintiff was an apprentice who it is alleged fell and suffered an injury on the 5th April 2007. The first named Defendant was a roofing contractor and the Plaintiff’s Employer on a site which it was claimed was under the control of the second named Defendant Company whose Directors were the other Defendants.

The Defendants denied liability (nobody witnessed this incident). They further attempted to rely on the failure of the Plaintiff to serve a letter of claim as required by Section 8 of The Civil Liability and Courts Act 2004, within two months from the accrual of the cause of action. They further alleged contributory negligence.

The Plaintiff’s evidence is set out in a very lengthy written Judgment by Justice Murphy. It is fair to say that there were a number of inconsistencies with the Plaintiff’s evidence in terms of the accident circumstances but also in terms of the injuries that were allegedly sustained. For example the Plaintiff appeared to have an inexplicable limp and was using a crutch for no apparent reason, despite the fact that he had not sought medical attention from his own General Practitioner for several years. He also appeared to lead a very active life which belied the description of the injuries sustained.

The Court assessed the credibility of the Plaintiff and relied on the statement of Lord Pearce in the House of Lords case of Onassis .v. Pergottis [1968] 2 Lloyd’s Rep. 403 at 431. Using that test the Court found the Plaintiff to be a truthful person but one who was maybe telling something less than the truth on the issue of his fall and on the deterioration of his health since the fall.

At the close of the Plaintiff’s case an Application was made by the Defendants for a Direction. The Defence, referring to the Plaintiff’s Replies to the Notice for Particulars and subsequent Affidavit of Verification in respect of same, said that the Plaintiff was exaggerating his claim and referred to the case of Carmello .v. Casey and Another [2007] IEHC 362 where Judge Peart dismissed a claim for lack of disclosure of an intervening accident under Section 26 of The Civil Liability and Courts Act, 2004.

The Court acknowledged the decision of The High Court in Mary Farrell .v. Dublin Bus [2010] IEHC 327 that the burden of proof for a successful Section 26 Application fell to the Defendant and that the appropriate standard of proof to prove that a Plaintiff had knowingly given or adduced false or misleading evidence for the purposes of the Application required a high probability.

The Court in this instance decided to refer the Direction to the close of the case.

Only medical evidence was called on behalf of the Defendants.

The Court was satisfied in this instance that the Plaintiff had exaggerated the consequences of his fall. It had misgivings regarding the history recounted by the Plaintiff to the Medical Consultants. It found that the use of a crutch at consultation could be interpreted as a deliberate attempt to exaggerate his symptoms. It found that that attempt caused Medical Consultants to adduce evidence that his injuries were more serious than which appeared from the Medical Records from the Plaintiff’s Accident & Emergency Department on initial attendance.

The Court considered whether the dismissal of the action would result in an injustice being done to the Plaintiff. It did not accept the argument that the Court should disallow that part of the claim which was based on false or misleading averments.

The Court noted that no Section 8 letter was sent to the Defendants within two months prescribed by The Civil Liability and Courts Act 2004 (but did not choose to comment upon that as to its contribution towards the ultimate Judgment).

The Plaintiff’s claim was dismissed.

Although just recently published this Decision was handed down in November 2011 and would have preceded The Supreme Court Judgment in Ahern .v. Bus Eireann [2011] IESC 44, which is the only Surpeme Court Judgment on the interpretation of a violation of Section 26 of The Civil Liability and Courts Act 2004.

In that case The High Court found that the Plaintiff whilst misleading the Court did not intend to do so. The Supreme Court did not interfere with that Judgment.

Section 26 Applications depend on the individual circumstances of the case, clearly and is a subjective test.

In the right case Section 26 clearly has teeth.

Pleural Plaques Compensation is available in Northern Ireland again.

Given the traditional history of heavy industry in Northern Ireland it is no surprise that asbestos related conditions have traditionally been the subject of litigation here.

The House of Lords Decision in Rothwell .v. Chemical and Insulating Co Ltd [2007] UKHL 29 decided that the mere presence of pleural plaques did not constitute injury which could give rise to a claim for damages. Up to then, Plaintiffs claiming upon diagnosis of pleural plaques had been recovering moderate amounts of damages.

On foot of the Rothwell decision The Scottish Parliament passed The Damages (Asbestos – related conditions) (Scotland) Act 2009. It provided that asbestos related pleural plaques and certain other asbestos related conditions did constitute personal injury and were actionable under Scots Law.

The insurance industry sought to challenge the validity of that Act on two fronts, namely;

1. That it is incompatible under Article 1 of Protocol 1 of the European Convention of Human Rights and therefore is outside the legislative competence of the Scottish Parliament under the Scotland Act 1998; and
2. That it is open to judicial review as an unreasonable, irrational and arbitrary exercise if a legislative authority of the Scottish Parliament.

The Supreme Court on Appeal from the Scottish Court of Session dismissed the Appeal.

It held that in order for such an Act to comply with Article 1 of Protocol 1 of the European Convention on Human Rights it must be shown that the Act was pushing a legitimate aim and was reasonably proportionate to that aim.

The Court accepted that the Act pursued a legitimate aim and that it was reasonably proportionate.

On the second limb of the Appeal the Court found that it would be wrong for the Judges to substitute their views as to what is rational or reasonable for the considered judgment of a democratically elected legislature.

The decision of the Supreme Court paved the way for equivalent legislation in Northern Ireland in the form of the Damages (Asbestos-Related Conditions) Act (Northern Ireland) 2011which has been in force since December 14th 2011. Read more here.

The Court of Appeal in England has given a Credit Hire company leave to launch contempt of court proceedings against seven former employees of a company, whose job it was to investigate, on behalf of insurance companies, spot hire rates of hire cars in areas where accidents occurred, it has been reported.

The Accusation is that the employees had given evidence alleging research that actually did not take place at all, and may have ‘infected’ up to 30,000 cases.

The Court (Lord Justice Moses sitting with Mr. Justice Irwin) ordered that the documents in the case be sent to the attorney-general, Dominic Grieve QC. The attorney-general has been given three months to come to a decision as to whether a criminal prosecution should be launched.

Speaking in the House of Lords in the civil litigation reform debate yesterday Lord McNally ruled out banning the practice known as Third Party Capture.

He said ‘Third-party contact does not, in itself, cause detriment to consumers and may be to their advantage as a claim can often be resolved quickly.

‘In addition, this practice can allow insurers to reduce the legal costs associated with handling a claim, and this in turn reduces costs for all policyholders.’

Lord McNally was reacting to Liberal Democrat Peer Lord Thomas of Gresford, who had tabled an amendment to the Legal Aid, Sentencing and Punishment of Offenders bill calling for the practice to be banned.

Court of Appeal reaffirms strict test in considering Financial Services Ombudsman decisions

The recent decision in the Court of Appeal case De Paor -v- Financial Services Ombudsman reaffirms the stringent test which must be adopted by the High Court in considering decisions of the Financial Services Ombudsman. The appellant joined Quinn Healthcare’s (the Provider) medical expenses insurance scheme. In August 2008, she was diagnosed with breast cancer and underwent surgery. She contacted the Provider following surgery, to enquire about cover for her further treatment, and in particular, a course of radiation. She was advised by the Provider that this treatment would not be covered under her Personal Care Plan, but that if she transferred to a Family Care Plan for a slightly higher premium, she would be covered for the specific form of radiation required. On the basis of this advice, the appellant agreed to change her policy to a Family Care Plan and proceeded with her medical treatment. It subsequently transpired that she would require chemotherapy before the radiation treatment – when advised the Provider of the change she was informed that she was not covered for either radiation or chemotherapy as her cancer was considered to be a pre-existing illness. The Provider ultimately agreed to cover her for eight sessions of chemotherapy but refused to cover her for radiation treatment. The appellant complained that by failing to honour the assurances given to her and classifying her condition as pre-existing, the Provider caused her inordinate stress and worry in relation to payments for various elements of her on-going cancer treatment and forced her to suspend further treatments required (such as bone density scans, MRI and CT scans and ECGs) pending a resolution of the dispute which she referred to the Financial Services Ombudsman in April 2010. The Provider acknowledged that the appellant was incorrectly advised on aspects of cover on her policy for the treatment, and then agreed to pay not only for the treatment but also to make further payment as a gesture of goodwill in respect of other aspects of the on-going treatment. An award of €850 was made to the appellant in respect of distress and inconvenience, and it is in respect of this amount of compensation that the appellant appealed the High Court. The parties agreed that it is not the function of the Court to place itself in the shoes of the Financial Services Ombudsman, and held that if the Court was to treat matters such as this as an appeal on quantum in the usual sense, it is likely that such appeals would frequently come before the courts arising out of decisions of the Ombudsman. If that were permitted, it would have the effect of frustrating the purpose of the scheme which is aimed at informal resolution of consumer issues. The whole purpose of the legislative scheme is to keep the process – so far as possible – out of the courts. The Court’s decision was reached not on the issue of whether the learned judge would have awarded a greater sum for stress and inconvenience but rather whether “taking the adjudicative process as a whole, the decision reached was vitiated by a serious and significant error or a series of such errors”. Finding nothing in the Respondent’s decision that would meet that test, the appeal was dismissed.