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Could Your Smartwatch Become a Witness? Wearable Technology and Personal Injury Claims

Posted on by Lacey Solicitors

Smartwatches and fitness apps now record an extraordinary amount of information about everyday life. Apple Watches, Fitbits, Garmin devices and apps such as Strava can create detailed records of steps, exercise, distance travelled, heart rate, sleep patterns and GPS activity.

For insurers defending personal injury claims, that creates an increasingly important evidential question: when a plaintiff puts their mobility, physical activity or ability to exercise directly in issue, could the data recorded on their wrist become relevant evidence?

At Lacey Solicitors, acting for insurers from our offices in Belfast and Dublin, we increasingly see digital evidence forming part of the wider investigation of personal injury claims. CCTV, social media, dashcam footage, vehicle telematics and surveillance are already familiar tools. Wearable technology may represent the next development.

Why Wearable Data Could Matter to Insurers

 

Personal injury claims frequently include allegations about changes in a plaintiff’s everyday activities through loss of amenity claims.

A plaintiff may say that an accident has substantially reduced their mobility, prevented them from walking significant distances, stopped them running or cycling, interfered with gym attendance or prevented a return to a sport or hobby.

Traditionally, those assertions are examined through medical evidence, witness evidence, employment records, social media and, in appropriate cases, surveillance.

Wearable technology can potentially add another source of evidence.

If an individual regularly wore a smartwatch before and after an accident, the device might show a measurable reduction in activity following the incident. That evidence could support the plaintiff’s account.

Conversely, recorded walks, runs, cycling sessions or other physical activity may require explanation where they appear inconsistent with an allegation of severe or prolonged physical restriction.

The important point for insurers is that wearable evidence should not be viewed simply as evidence against a plaintiff. It can support either side of the case. Its value lies in providing an objective evidential background against which the pleaded case, medical evidence and plaintiff’s account can be tested.

Strava and Personal Injury Claims

 

Strava is particularly interesting in claims involving running, walking and cycling.

Depending upon the device used and the individual’s settings, an activity can record distance, duration, pace, speed, route, elevation and sometimes heart-rate information.

There may also be a significant distinction between data held privately within an account and activities which the individual has chosen to make publicly visible.

Strava evidence has already appeared in UK civil litigation and is used regularly within our office to test a Plaintiff’s account.

In the Scottish Court of Session decision of Nigel Dick v Joseph Merrick [2024] CSOH 39, Strava and GPS material was considered in examining the circumstances surrounding a serious cycling collision.

The case is particularly useful because it also demonstrates why insurers should be cautious about treating digital data as infallible. The Court heard evidence about the limitations of GPS positioning and the degree of error which could affect Strava data.

A GPS point on a map is therefore not necessarily conclusive evidence that a person was in an exact position at an exact second. As with CCTV, telematics or engineering evidence, the underlying technology and its limitations have to be understood.

Could an Insurer Obtain Smartwatch Data in Northern Ireland?

 

Potentially, although relevance and proportionality are critical.

Discovery in Northern Ireland can extend to material in a party’s possession, custody or power which relates to matters in issue.

There is, however, an important procedural qualification in County Court litigation.

Where liability has been admitted, or where proceedings arise from a collision or apprehended collision involving a vehicle, the County Court Rules generally restrict ordinary discovery to documents relating to special damage unless the Court orders otherwise.

That can be important in a road traffic personal injury claim where a Defendant wishes to obtain smartwatch information solely to investigate general damages or an allegation of continuing restriction.

It does not necessarily mean that such evidence could never be obtained. It means that the insurer and its solicitors need to consider the procedural route carefully and be capable of explaining why the particular evidence sought is relevant and necessary.

A request for a claimant’s complete Apple Health history from several years before an accident to the present day is likely to raise obvious objections.

A tightly defined request directed, for example, to activity or step-count information over a specific period where the plaintiff alleges an inability to walk significant distances presents a very different proposition.

What About Discovery in the Republic of Ireland?

 

Similar questions arise in Irish litigation, although under a different procedural regime.

In High Court proceedings, Order 31 of the Rules of the Superior Courts expressly deals with electronically stored information. A party seeking discovery must identify the categories required and explain why they are necessary for the fair disposal of the proceedings or for saving costs.

The Rules expressly provide that, for discovery purposes, documents include electronically stored information.

In Circuit Court proceedings, Order 32 similarly permits discovery of documents relating to matters in issue, subject to the Court’s assessment of whether the discovery sought is necessary.

For an insurer defending a claim in Dublin or elsewhere in the Republic, the question is therefore unlikely to be simply, “Can smartwatch data be discovered?”

The more useful questions are: What precise data is relevant? What allegation does it test? What period is justified? Does the claimant have possession or power over the information? And is obtaining it proportionate to the issue being investigated?

Those questions should inform the wording of any voluntary discovery request and any subsequent application.

What Can Insurers Learn From US Wearable-Data Cases?

 

Although US decisions are not binding in either Northern Ireland or the Republic of Ireland, American courts have already had to deal directly with requests for Fitbit information and provide useful illustrations of the competing arguments.

In Bartis v Biomet Inc (2021), a US Federal Court considered Fitbit information in circumstances where the claimant alleged continuing pain and limitations on his mobility.

The Court accepted that activity levels were relevant and ordered production of a portion of the Fitbit information. Significantly, the Defendant did not receive unrestricted access to every category of information generated by the device.

That approach can be contrasted with Spoljaric v Savarese (2020), where the New York Supreme Court rejected a demand for all Fitbit data. The Court considered that the request, on the evidence before it, amounted to an overly broad fishing expedition.

The distinction is important for insurers.

The developing lesson is not that a claimant’s entire digital life becomes discoverable whenever personal injury is alleged. Rather, specific activity information may become relevant where it can be linked directly to a pleaded allegation concerning mobility, incapacity or loss of amenity.

Data Protection Does Not End the Analysis

 

Wearable devices can contain extremely sensitive information.

Heart-rate information, health measurements and other information concerning health may constitute special-category personal data for the purposes of data-protection legislation.

Different statutory regimes apply in Northern Ireland and the Republic of Ireland, but both the UK GDPR and EU GDPR recognise processing connected with the establishment, exercise or defence of legal claims.

That does not provide a licence to collect unnecessary information.

Relevance, necessity, proportionality, data minimisation and security remain important considerations. An insurer investigating whether a claimant continued running following an accident may have a legitimate reason for seeking activity information. That does not automatically create a legitimate need for unrelated sleep information, menstrual-cycle information, historic cardiac measurements or an unrestricted GPS history.

The distinction between the information that is relevant to the litigation and everything the device happens to contain is likely to become increasingly important.

Discovery Does Not Automatically Mean Public Disclosure

 

There is also a distinction between information being produced during litigation and information becoming generally available to the public.

Discovery does not automatically place a claimant’s entire smartwatch or app history into the public domain.

However, if particular information becomes relevant evidence at trial, it may ultimately be referred to in open court, included in expert evidence or discussed in a judgment.

That is another reason why requests should be directed towards the information genuinely required for the litigation.

When Should Insurers Consider Wearable Evidence?

 

Wearable evidence is unlikely to be worthwhile in the ordinary minor injury claim simply because a claimant happens to own an Apple Watch.

Its potential significance increases where there is a genuine evidential issue concerning substantial or prolonged loss of mobility; an alleged inability to walk, run, cycle or exercise; significant loss of amenity involving sport or physical hobbies; conflicting accounts of physical capability; or other evidence suggesting that recorded activity may materially assist in testing the claim.

The starting point should therefore be the pleaded case and the medical evidence rather than the technology itself.

The question is not, “Does this claimant own a smartwatch?”

It is, “Is there an issue in this claim which relevant smartwatch information could properly help to resolve?”

Preservation and Interpretation of Digital Evidence

 

Insurers should also consider the practical quality of the evidence.

A screenshot showing a single day’s step count may tell only part of the story. Where wearable evidence is likely to be important, consideration may need to be given to the underlying export, the period covered, the device which produced the information, whether information was entered manually, whether the device was worn consistently and whether data has been synchronised between different applications.

Context matters as well.

Ten thousand recorded steps do not necessarily establish that a claimant was pain-free. A recorded cycle does not establish the absence of an injury. Equally, an assertion that someone could barely walk may require further examination if their fitness application records repeated substantial activity throughout the same period.

Wearable evidence should therefore be considered alongside the medical evidence and the remainder of the evidential picture rather than in isolation.

From CCTV to Smartwatches: The Changing Evidence in Personal Injury Litigation

 

Claims investigation has changed significantly.

Insurers now routinely encounter evidence generated by mobile phones, social media accounts, dashcams, CCTV systems and vehicle telematics. Smartwatches and fitness applications add another substantial source of contemporaneously generated digital information.

As adoption of these devices increases, disputes about their disclosure, interpretation and evidential weight are likely to become more common.

For insurers, the practical approach is likely to be targeted rather than speculative: identify the particular allegation requiring investigation, determine whether wearable data could genuinely assist, define the information and period required and consider the appropriate procedural mechanism for obtaining it.

Insurance Defence Solicitors in Dublin and Belfast

 

Lacey Solicitors is an insurance law firm acting for insurers and their policyholders in personal injury and insurance litigation across Northern Ireland and the Republic of Ireland, from our offices in Belfast and Dublin.

Our insurance defence team advises on claims investigation, discovery, surveillance, digital evidence, road traffic litigation and the evidential issues arising from increasingly sophisticated technology.

Wearable data will not be relevant in every personal injury claim but in every case it is tested by our team who carry out the relevant online searchs and social media searches. Where a plaintiff’s mobility, physical activity or ability to participate in sport is directly in issue, information generated by a smartwatch or fitness application may increasingly become part of the evidential picture.

The witness of the future may not always be a person. Sometimes, it may be the device on their wrist.

CCTV After an Accident in Ireland: GDPR, Discovery and Access Requests

Posted on by Ruaidhri Austin

Any insurance practitioner will know that CCTV is one of the most important peices of evidence following an accident. Unlike witness recollections, footage may provide a contemporaneous record of where people were positioned, how an accident occurred and what happened immediately afterwards.

But having been captured on CCTV does not necessarily mean that a person involved in an accident is automatically entitled to receive the footage through the court discovery process.

Irish law draws an important distinction between obtaining CCTV through discovery in civil proceedings and requesting access to your own personal data under Article 15 of the GDPR.

That distinction became particularly important following the High Court decision in Dudgeon v Supermacs Ireland Ltd [2020] IEHC 600 and the subsequent response from the Irish Data Protection Commission.

For insurers, businesses, defendants and those involved in a personal injury* claim, understanding the difference can be significant.

Why Is CCTV So Important After an Accident?

 

CCTV frequently arises in claims involving:

  • accidents in shops, supermarkets, restaurants and hotels;
  • slips, trips and falls;
  • road traffic accidents in car parks or near commercial premises;
  • accidents involving buses or other public transport;
  • workplace accidents; and
  • incidents where there is disagreement about exactly what happened.

The attraction of CCTV is obvious. It may provide an objective record of an event which can later be compared with witness evidence, pleadings, medical evidence and the accounts given by the parties.

However, there are different legal routes by which CCTV might be obtained, and those routes should not be confused.

What Is Discovery?

 

Discovery is the process by which parties to civil litigation may be required to disclose relevant documents and material in their possession, power or procurement.

Its purpose is not to provide unrestricted access to everything that might be interesting or potentially useful. Discovery is governed by the issues arising in the proceedings and the principles of relevance, necessity and the proper administration of justice.

CCTV is capable of being discoverable. Indeed, video footage can sometimes be extremely important evidence.

However, Dudgeon v Supermacs demonstrates that the existence of relevant CCTV does not necessarily mean that a court will order its disclosure in every case.

What Happened in Dudgeon v Supermacs?

 

The case arose from an accident at a Supermacs restaurant in Galway in January 2017.

The plaintiff’s case was that she sat on a chair which broke and that she fell to the ground, sustaining injury. Proceedings were subsequently issued and discovery was sought, including CCTV footage from the restaurant.

The plaintiff argued that CCTV represented particularly strong evidence because it recorded events as they happened and was not dependent upon the potentially imperfect recollection of witnesses.

The request was resisted by Supermacs.

The dispute ultimately reached the High Court, where Mr Justice Barr considered the purpose for which the footage was being sought. The Court concluded on the particular facts that the CCTV was essentially being requested so that the plaintiff could verify her assertion that she had fallen to the ground before giving evidence.

The High Court upheld the refusal to order discovery of the footage.

The decision should not be interpreted as establishing that CCTV cannot be discovered in personal injury litigation. Rather, it illustrates that a request for CCTV through discovery will be considered according to the issues in the particular proceedings and the purpose and necessity of the discovery sought.

Does Dudgeon Mean an Injured Person Cannot Obtain the CCTV?

 

No.

This is where the distinction between discovery and data protection law becomes particularly important.

Following the decision in Dudgeon, the Irish Data Protection Commission published specific guidance entitled “CCTV, Discovery and Access Requests” on 10 February 2021.

The DPC expressly emphasised that Dudgeon concerned the law of discovery in Irish litigation.

It did not determine an individual’s separate rights under data protection law. (Homepage | Data Protection Commission)

The DPC explained that the right to access one’s own personal data is grounded in Article 15 GDPR and Article 8(2) of the Charter of Fundamental Rights of the European Union.

Crucially, the DPC stated that an individual’s right to request access to personal data does not depend upon whether that person is involved in court proceedings. (Homepage | Data Protection Commission)

Accordingly, the fact that CCTV may not be obtainable through discovery does not necessarily determine whether an individual has a separate entitlement to access personal data contained in that footage under the GDPR.

Can You Make a GDPR Request for CCTV?

 

Potentially, yes.

Where CCTV contains an identifiable image of an individual, that image can constitute that person’s personal data.

Article 15 GDPR provides individuals with a right of access to personal data being processed about them. In appropriate circumstances, this can include CCTV footage.

The DPC has stated that, when dealing with CCTV access requests, providing a copy of the individual’s personal data will usually require the provision of the footage itself in video format.

Where video genuinely cannot be provided, still images may sometimes be appropriate, but the controller must still provide a complete response in accordance with its obligations. (Homepage | Data Protection Commission)

This is not merely theoretical.

In a DPC case study published in relation to 2024, an individual requested CCTV following an accident involving a transport company’s bus. The company did not initially respond. Following intervention by the DPC, the company provided the requested CCTV footage to the individual. (Homepage | Data Protection Commission)

Does It Matter That the CCTV Is Wanted for a Legal Claim?

 

This is where a later decision of the Court of Justice of the European Union becomes particularly relevant.

In FT v DW, Case C-307/22, decided on 26 October 2023, an individual sought access to medical records under Article 15 GDPR with a view to examining potential liability arising from medical treatment.

The Court held that the GDPR does not make the provision of the first copy of personal data conditional upon the person giving reasons to justify the request.

In other words, the controller could not require the data subject to demonstrate some approved GDPR-related motive before exercising the Article 15 right. (EUR-Lex)

Although FT v DW concerned medical records rather than CCTV, the Article 15 principle is important.

A request does not cease to be an Article 15 request simply because the individual may ultimately wish to use the information when considering legal proceedings.

That creates an interesting contrast with Dudgeon.

In Dudgeon, the purpose for which the plaintiff sought the CCTV was highly relevant to the Court’s decision on discovery.

Article 15 GDPR operates under a different legal framework.

Is a Subject Access Request a Way Around Discovery?

 

It would be too simplistic to describe GDPR as a means of simply circumventing the rules of discovery.

The better analysis is that the two rights have different legal foundations and different purposes.

Discovery is part of the court process. It concerns disclosure between litigating parties and is controlled by the rules and principles governing civil proceedings.

A Subject Access Request concerns an individual’s statutory right to obtain access to their own personal data.

The Data Protection Commission’s response to Dudgeon could hardly be clearer on that distinction: the fact that litigation exists does not, by itself, remove the right to request access to personal data. (Homepage | Data Protection Commission)

Equally, Article 15 is not unlimited.

The GDPR itself contains qualifications, including protection for the rights and freedoms of others, and Irish legislation contains circumstances in which data protection rights may lawfully be restricted.

Any refusal therefore requires consideration of the actual legal basis relied upon. A blanket response that CCTV will not be provided simply because personal injury proceedings are contemplated or underway may not adequately address the separate Article 15 issue.

What If Other People Appear on the CCTV?

 

This is a common practical issue.

An access request concerns the requester’s personal data. It does not automatically entitle that individual to unrestricted personal data relating to everybody else who appears on the recording.

That does not necessarily justify withholding the entire recording.

The DPC’s CCTV guidance explains that where other identifiable people appear, a controller may need to pixelate or otherwise de-identify those individuals before supplying the footage. (Homepage | Data Protection Commission)

Controllers therefore need to consider whether third-party rights can be protected through editing or redaction rather than assuming that the presence of another person automatically prevents disclosure.

How Quickly Should CCTV Be Requested?

 

As early as possible.

Many CCTV systems operate according to retention periods and footage may eventually be overwritten in the ordinary course of operation.

If an accident has occurred and CCTV is likely to be relevant, consideration should therefore be given promptly to identifying who controls the system and requesting that relevant footage is preserved.

Once a valid access request has been made, the GDPR generally requires a response within one month. The DPC has also emphasised the importance of preserving relevant footage while an access request is being dealt with. (Homepage | Data Protection Commission)

For insurers and businesses operating CCTV systems, appropriate procedures for identifying, preserving, reviewing and redacting footage can therefore be important both from a claims-handling and data-protection perspective.

Obtaining CCTV Is Not the Same as Having an Unrestricted Right to Publish It

 

There is another important distinction.

Even where CCTV is disclosed during civil litigation, the recipient does not ordinarily acquire an unrestricted right to circulate or publish it.

Documents and information produced through discovery are generally subject to an implied undertaking that they will be used only for the purposes of the proceedings in which they were disclosed.

We have previously looked in detail at this issue in our article Discovery, Implied Undertakings and Contempt of Court: A Conor McGregor Saga, following the High Court proceedings concerning CCTV used in the Nikita Hand litigation. (Lacey Solicitors)

The important point is that:

the right to obtain evidence and the right to publish or disseminate that evidence are two different questions.

CCTV obtained on discovery must be handled in accordance with the obligations attaching to the discovery process. Material obtained through a data protection request may raise different issues, but receipt of personal data should not be treated as an unrestricted licence to publish footage containing other individuals or otherwise interfere with their rights.

The Position for Insurers and Businesses

 

For insurers, retailers, hospitality businesses, transport operators and other organisations dealing with accident claims, Dudgeon should not be treated as authority for a general policy of refusing CCTV requests whenever litigation is anticipated.

The first question should be: what legal route is being used to seek the footage?

A request for voluntary discovery, a formal discovery application and an Article 15 access request are not the same thing.

Businesses should also distinguish between:

a dispute over whether CCTV must be disclosed as evidence in litigation; and

an individual’s separate request to obtain personal data held about them.

Conflating the two can create unnecessary difficulty and potentially expose a controller to a complaint to the Data Protection Commission.

The Position for Someone Involved in an Accident

 

For a person seeking CCTV following an accident, the practical starting point is to identify quickly who owns or controls the camera.

The request should identify the accident as accurately as possible, including the date, approximate time, location and any information that assists the controller in identifying the requester on the footage.

It may also be sensible to request expressly that the footage is preserved pending determination of the request.

Where litigation is contemplated, the appropriate route to obtaining evidence will depend upon the circumstances of the particular case. A Subject Access Request and discovery should not automatically be treated as interchangeable.

CCTV, GDPR and Litigation: The Key Distinction

 

The aftermath of Dudgeon v Supermacs demonstrates why CCTV disputes require careful analysis.

The High Court was entitled to consider the proper purpose and necessity of a discovery application within civil litigation.

The Data Protection Commission subsequently made clear that this did not determine the separate right of a person to request access to their own personal data under Article 15 GDPR.

The later decision of the CJEU in FT v DW reinforces the point that an Article 15 requester does not generally have to provide a particular reason to justify exercising the right of access. (EUR-Lex)

For both insurers and those bringing claims, the starting point should therefore be to identify which legal right is actually being exercised.

Discovery and data access can sometimes concern exactly the same piece of CCTV footage.

They are not, however, the same legal process.

Lacey Solicitors Insurance Lawyers Dublin

Lacey Solicitors advises insurers, businesses and individuals in relation to insurance litigation and personal injury* proceedings throughout Ireland.

Our Dublin office is at Ormond Building, 31–36 Ormond Quay Upper, Dublin 7, D07 EE37, and can be contacted on +353 1 513 4375.

 

In contentious business, a legal practitioner shall not charge any amount in respect of legal costs expressed as a percentage or proportion of any damages (or other moneys) that may become payable to his or her client or purport to set out the legal costs to be charged to a junior counsel as a specified percentage or proportion of the legal costs paid to a senior counsel. A legal practitioner shall not without the prior written agreement of his or her client deduct or appropriate any amount in respect of legal costs from the amount of any damages or moneys that become payable to the client in respect of legal services that the legal practitioner provided to the client.

 

How to Set Up an Accident Management Company in Northern Ireland

Posted on by Ruaidhri Austin

Northern Ireland, and Belfast in particular, has seen considerable growth in the number of accident management companies providing replacement vehicles, repairs, recovery and other assistance following a car accident.

This growth reflects the legitimate role these businesses can play. A well-run accident management company can arrange prompt vehicle recovery, keep a motorist mobile and coordinate repairs while liability is being investigated. It can also assist insurers by presenting organised evidence, providing regular updates and progressing the vehicle-damage claim efficiently.

However, the accident management model is not without criticism. Hire charges can accumulate quickly, delays in repairs can extend claims and an apparently straightforward car crash can develop into expensive litigation. Insurers are entitled to investigate whether a replacement vehicle was reasonably required, whether the daily rate was recoverable and whether the period of hire could have been reduced or even whether any credit hire agreement is properly enforeable.

Anyone considering setting up an accident management company in Northern Ireland must therefore seek to establish a business that is commercially viable, properly documented and capable of withstanding scrutiny from insurers, solicitors and the courts.

Lacey Solicitors acts in motor claims for insurers, accident management companies, other businesses and individual motorists. This experience gives us a practical understanding of what a ‘good’ accident managment company looks like and how to ensure a collaborative approach with insurance companies ensuring a smoother process for the AMCs customers.

What Does an Accident Management Company Do?

 

An accident management company assists motorists with the practical consequences of a road traffic accident. Depending on its model, agreements with customers and experience, it may:

  • Recover the damaged vehicle;
  • Arrange secure storage of the vehicle;
  • Obtain a motor assessor’s report addressing the damage, repair costs and roadworthiness;
  • Organise repairs through a reputable local repair garage;
  • Provide a replacement vehicle while the damaged vehicle is off the road;
  • Deal with pre-accident valuations and vehicle write-offs;
  • Communicate with insurers regarding indemnity, liability and payment;
  • Preserve evidence relating to the accident; and
  • Introduce the motorist to an independent solicitor where legal advice is required.

Some companies provide a complete post-accident service. Others specialise in particular parts of the market, such as taxis, motorcycles, prestige cars, vans or commercial vehicles.

The services offered will determine the company’s financial position, insurance requirements, contractual arrangements and regulatory position.

Decide What Type of Accident Management Company You Intend to Operate

Establishing an accident management company is an exciting prospect, but our advice is always to avoid putting the cart before the horse.

Too often, we have to decline instructions from individuals or newly established businesses who assume that owning a fleet of vehicles, or having access to replacement vehicles, is enough to establish and operate a successful accident management company.

In our experience, one of the most common mistakes made by new entrants is purchasing a fleet of vehicles before fully considering how the wider business will operate. A fleet may be an important asset, but it is only one part of a much larger operation.

Before purchasing vehicles or accepting the first customer, prospective owners should carefully consider:

  • Whether the business will provide credit hire;
  • Whether it will provide or fund credit repairs;
  • Whether replacement vehicles will be owned, leased or sourced through third-party providers;
  • How vehicle recovery will be arranged and which categories of damaged vehicle can be accommodated;
  • Where damaged vehicles will be stored, including whether facilities are suitable for electric vehicles;
  • Which categories of replacement vehicle will be available;
  • Whether licensed taxis will be supplied and, if so, whether taxi meters will also be provided;
  • Whether the business will operate exclusively in Northern Ireland or extend into other jurisdictions;
  • How customers will be sourced and how the business will generate a sustainable flow of instructions;
  • Who will be responsible for pursuing outstanding hire, repair, recovery and storage charges; and
  • How the business will respond when liability is disputed or payment is delayed or refused.

Many of the new entrants who approach us already have an established presence in the motor trade. They may operate a dealership, repair garage or recovery business, or have access to a readily available fleet of vehicles.

That experience can provide a valuable commercial foundation. However, operating an accident management company involves a different set of legal, financial and operational considerations. Success requires more than simply having vehicles available to hire.

The distinction should be reflected from the outset in the business plan, staff training, credit hire agreements, claims-handling procedures, funding arrangements and insurance cover.

The key is to establish the business model before committing significant capital. A carefully structured accident management operation is better placed to manage risk, control expenditure and build a sustainable business than one that begins with a fleet but without a clear plan for how that fleet will generate and recover revenue.

Are Accident Management Companies Regulated in Northern Ireland?

 

As at September 2026, there is no regulator responsible for licensing a business merely because it provides accident management services in Northern Ireland unlike other jurisdictions.

The Financial Conduct Authority has confirmed that claims management companies carrying on claims-management activities in Northern Ireland are outside its claims-management regulatory perimeter. This differs from the position in England, Scotland and Wales.

That does not mean that an accident management company operating in Northern Ireland is entirely unregulated.

The legal position depends upon what the business actually does rather than the name it gives itself. An accident management company may still be affected by the legislation governing consumer hire, consumer credit, insurance distribution, data protection, electronic marketing and consumer contracts.

When FCA Authorisation May Be Required

FCA authorisation may be required where the business:

  • Enters into or administers regulated consumer hire agreements;
  • Undertakes consumer-credit or credit-broking activities;
  • Arranges or advises upon insurance;
  • Carries on insurance-distribution activities;
  • Provides regulated claims-management services in Great Britain; or
  • Conducts another regulated financial activity.

Whether a particular hire agreement is regulated will depend upon its terms and the circumstances in which it is entered into.

A Northern Ireland accident management company should obtain an assessment before commencing business. It should not assume that all its activities fall outside FCA regulation simply because the company has a Belfast address or operates mainly in Northern Ireland.

Expanding into the Republic of Ireland

Lacey Solicitors handles credit hire claims in both Northern Ireland and the Republic of Ireland on behalf of both insurers and accident management companies.

Ireland is a small island, and it may make commercial sense for an established Northern Ireland accident management company to develop a network of repairers, recovery operators and replacement-vehicle providers in the Republic. Credit hire litigation in the Republic remains less developed than in Northern Ireland, however, and the same legal or procedural assumptions should not automatically be applied in both jurisdictions.

Expansion should therefore be planned carefully. The company will need to consider:

  • The law governing its customer agreements;
  • Differences in the law of champerty in both NI and ROI;
  • The appropriate jurisdiction for disputes;
  • Insurance coverage in the Republic of Ireland;
  • Vehicle registration and licensing requirements;
  • VAT and tax treatment;
  • Data transfers and customer privacy;
  • The applicable court procedures; and
  • How outstanding charges will be recovered.

Lacey Solicitors has offices in Belfast and Dublin, and members of our team are qualified to act in both Northern Ireland and the Republic of Ireland. We can therefore provide joined-up advice to accident management companies operating on an all-island basis.

Establish the Business Properly

 

Most accident management businesses operate through a private limited company.

The company will require:

  • A suitable company name;
  • A registered office;
  • A registered email address;
  • Appropriately appointed directors and shareholders;
  • Registration for the relevant taxes; and
  • A suitable business bank account.

Operating through a limited company creates a separate legal entity, but it does not remove every risk faced by its directors or shareholders.

The structure should reflect how the business will be funded, who will own the vehicles, who will enter into the customer agreements and which entity will pursue the charges. These issues are considerably easier to address before trading begins than after the company has built a substantial book of outstanding hire claims.

Build a Defensible Credit Hire Model

 

This is an area in which Lacey Solicitors can provide particular assistance. We are involved at the coal face of credit hire litigation in Northern Ireland and the Republic of Ireland.

Credit hire can provide an important service to a motorist who reasonably requires a replacement vehicle but cannot as a matter of priorities pay for one immediately.

It is not, however, an automatic entitlement following every non-fault accident.

The customer ordinarily enters into an agreement under which payment of the hire charges is deferred while recovery is pursued from the responsible driver or insurer. Whether those charges are ultimately recovered will depend upon the accident circumstances, the customer’s need for a replacement vehicle, the applicable rate, the duration of hire, the contractual documentation and the supporting evidence.

It is not a ‘free car’ or ‘courtesy car.’

A massive hire invoice is not necessarily a valuable asset. If the agreement is defective, the customer did not need a vehicle or the period of hire was unnecessarily extended owing to poor claims practices, some or all of the charges may be disputed.

Lacey Solicitors acts for both insurers and accident management companies in credit hire claims. This gives our lawyers a balanced understanding of the issues from each side of the litigation.

We provide training to insurers on the investigation and defence of credit hire claims. We also train accident management companies on the evidence they will be expected to produce, the insurance requirements, the needs to properly assess an individuals circumstances, the questions insurers are likely to ask and the issues that may arise if the claim proceeds to court.

Our work includes:

  • Drafting and reviewing credit hire agreements;
  • Advising on credit repair, recovery and storage documentation;
  • Developing customer onboarding procedures;
  • Assessing evidence of need;
  • Reviewing hire rates and periods;
  • Preparing claims for presentation to insurers;
  • Responding to requests for information and disclosure;
  • Advising on disputed or reduced offers;
  • Training claims handlers and management teams; and
  • Conducting credit hire litigation in Northern Ireland and the Republic of Ireland.

We have substantial experience working with established accident management companies throughout both jurisdictions.  Our aim is to ensure that legitimate services are properly documented, reasonably provided and capable of being proved to ensure a collaborative approach to claims.

That approach protects the accident management company, provides transparency for the motorist and allows an insurer to assess the claim on its proper merits on behalf of their policyholder.

Lacey Solicitors manages the credit hire claim from the outset. Our network of motor assessors across Northern Ireland and the Republic of Ireland is well known to insurers nad are often on panel to some insurers in this jurisdiction.  That means tha they are both experienced and qualifed in giving evidence before the courts. Their reports are integral to establishing the vehicle’s condition, roadworthiness, repair period and resulting period of loss of use which goes directly to the recoverability of any hire sum.

We create and most importantly, control, a clear timeline. We take the customer’s instructions, appoint the assessor, arrange the inspection, review the report with the customer, submit it to the third-party insurer and chase regularly for a response. This allows us to stand over the claimed loss-of-use dates and reduces the scope for disputes about avoidable delay.

We also provide guidance and training on setting fair and recoverable hire rates. This includes consideration of:

  • The General Terms of Agreement;
  • Rates available in the local market;
  • Comparable Basic Hire Rates; and
  • Our own Basic Hire Rate reports.

The objective is to establish rates that are fair, reasonable and commercially defensible—not inflated.

Impecuniosity is considered by our office at an early stage. We train accident management companies to understand what impecuniosity means, when it may be relevant and what financial evidence could be required if it is relied upon.

By controlling the evidence, rate and duration from the beginning, we place legitimate credit hire claims in the strongest possible position for presentation to insurers or, where necessary, the court.

Prepare Clear Credit Hire Agreements

 

Credit Hire agreements should be drafted for the particular business. Copying an agreement used by another accident management company is risky because its services,  allowcances and payment structure may be different.

Separate documentation may be required for:

  • Credit hire;
  • Credit repair;
  • Recovery and storage;
  • Engineer’s fees;
  • Insurance-related products;
  • Data protection;
  • Cancellation rights; and

Explain the Customer’s Responsibility

Ensuring that the customer fully understands the terms of the agreement, strengthens its enforceability and reduces the risk of disputes at a later stage.  We explain;

  • The daily hire rate;
  • When the hire charges begin and end;
  • Whether the customer remains liable for payment;
  • What happens if recovery from the other insurer is unsuccessful;
  • The obligation to provide truthful information;
  • The possibility of financial disclosure;
  • The possibility of attending court;
  • The obligation to cooperate with the claim;
  • Vehicle-use restrictions; and
  • Any cancellation rights.

Describing credit hire as automatically “free” or guaranteeing that the responsible insurer will pay often misleads the customer.

Even where liability for the collision is admitted, the insurer may still dispute the need for hire, the class of vehicle, the daily rate or the duration.

Build Constructive Relationships With Insurers

 

An accident management company and a third-party insurer will not always agree. Nevertheless, professional communication can reduce unnecessary disputes and costs.

Early notification should provide sufficient information to allow the insurer to investigate the claim. Depending on the circumstances, this may include:

  • The accident circumstances;
  • Vehicle details;
  • The customer’s need for a replacement vehicle;
  • The type of vehicle supplied;
  • The applicable rate;
  • The condition of the damaged vehicle;
  • Repair or total-loss information; and
  • Relevant supporting documents.

Do Not Mistake Robustness for Obstruction

An accident management company is entitled to protect its legitimate position. Equally, an insurer is entitled to investigate the claim and challenge unsupported charges on behalf of their policyholder.

Insurers have a duty to protect their policyholders and fully investigate claims.  They are not being obstructive and they are entitled to challenge claims where they see fit.  Our office knows first hand that there are bad practices from other accident management companies that insurers often wish to explore with a newly established accident managment company to make sure that similar issues do not arise.

Refusing reasonable information such as insurance details of the hire car, allowing avoidable delay such as delays in offing hire when PAV payment raised or treating every request as tactical obstruction is unlikely to advance the claim and will serve only to delay this claim and future claims with that particular insurer.  Indeed insurers share information and so it is important to assist where possible.

The strongest cases are generally those in which:

  • The hire documentation is clear;
  • Need was properly assessed;
  • The rate is reasonable and can be explained;
  • The hire period was actively monitored by the solicitor and can be proven;
  • Updates were provided promptly; and
  • The underlying liability evidence is complete.

This approach benefits the customer, the accident management company and the insurer and it is through this approach that Lacey Solicitors excel.

Establish a Reliable Supplier Network

 

The company may need relationships with:

  • Recovery operators;
  • Storage facilities;
  • Repair garages;
  • Insurers;
  • Motor assessors;
  • Vehicle suppliers;
  • Fleet insurers;
  • Solicitors

Each relationship should be documented.

Monitor Repair Progress

Repair delays can substantially increase hire charges. The accident management company should obtain:

  • Prompt estimates;
  • Evidence of parts orders;
  • Regular progress reports;
  • Notice of additional damage;
  • Realistic completion dates; and
  • Properly itemised invoices.

An insurer should not be expected to pay additional hire charges caused by inactivity or poor communication between the accident management company and its chosen repairer.

Comply With Data Protection Law

 

An accident management company often processes driving licences, insurance records, financial information, accident details and, in some cases, medical information.

The company should determine whether it must register with the Information Commissioner’s Office.

Its data-protection arrangements should include:

  • A privacy notice;
  • An identified lawful basis for processing;
  • Additional protection for health information;
  • Data-sharing agreements;
  • Secure access controls;
  • Retention and deletion policies;
  • A data-breach procedure;
  • Procedures for data-subject requests;
  • Supplier due diligence; and
  • Staff training.

Information should not move automatically between garages, accident management companies, solicitors and medical agencies without a lawful basis and appropriate safeguards.

Manage Relationships With Solicitors Properly

 

An accident management company should not provide legal advice unless it is authorised and qualified to do so.

Where legal advice is required, the customer should be referred to a solicitor and the customer must remain free to choose their own legal representative.

Any relationship with a solicitor should respect:

  • The solicitor’s professional independence;
  • The customer’s freedom of choice;
  • Confidentiality;
  • Data-protection requirements;
  • Potential conflicts of interest;
  • Settlement authority; and
  • The distinction between the customer’s interests and the company’s invoice.

Recognise Potential Conflicts

The solicitor acts for the motorist, not for the accident management company.

A conflict may arise where:

  • The customer wishes to accept an offer;
  • The hire company considers the offer inadequate;
  • The customer does not want to provide financial records to substantiate impeccuniosity;
  • The customer disputes liability for the hire charges;
  • The company wants proceedings issued; or
  • The likely recovery is insufficient to discharge every claim.

No arrangement should interfere with the solicitor’s independent duties.

Prepare for Insurer Scrutiny and Litigation

 

A credit hire claim should be prepared on the assumption that it may have to be proved in court.

The company should preserve:

  • The signed agreements;
  • The electronic-signature audit trail;
  • Vehicle records;
  • Rate evidence;
  • Need assessments;
  • Repair records;
  • Insurer correspondence;
  • Hire-monitoring notes; and
  • Payment information.

A company representatives should also be capable of explaining the business’s procedures and the basis of its charges.

Consider Wider Costs Risks

The financial risk is not always limited to non-payment of the company’s invoice.

Depending on the jurisdiction and the company’s involvement in litigation, an opposing party may seek a costs order against a credit hire company that funds, controls or is the principal beneficiary of unsuccessful proceedings.

The company should obtain advice before exercising control over litigation or encouraging proceedings primarily to recover its own charges.

Obtain Appropriate Insurance 

 

Depending on the business model, appropriate cover may include:

  • Fleet motor insurance;
  • Employers’ liability insurance;
  • Public liability insurance;
  • Professional indemnity or errors and omissions cover;
  • Cyber insurance;
  • Directors’ and officers’ insurance;
  • Premises and equipment insurance;
  • Business interruption cover; and
  • Legal expenses cover.

Most employers in Northern Ireland must have employers’ liability insurance. The wider insurance programme should be reviewed whenever the company introduces a new service or vehicle class.

Market the Business Responsibly

 

A new accident management company in Belfast or elsewhere in Northern Ireland must explain clearly what it offers.

Its website and advertising should distinguish the company from:

  • The customer’s insurer;
  • The responsible driver’s insurer;
  • A firm of solicitors; and

Marketing should not guarantee that:

  • Every service will be free;
  • Every customer is entitled to a like-for-like vehicle;
  • Liability will be admitted;
  • Every hire invoice will be recovered;
  • Compensation will be paid; or

A credible accident company should instead compete and market itself through prompt service, transparent agreements and effective case management—not unrealistic promises.

Accident Management Company Start-Up Checklist

 

Before accepting the first car crash claim, the business should have:

  • A defined service and geographical scope;
  • A realistic business plan;
  • Sufficient working capital;
  • An incorporated business structure;
  • Tax and VAT advice;
  • A regulatory-perimeter assessment;
  • ICO registration where required;
  • Legally drafted customer agreements;
  • A compliant privacy framework;
  • Appropriate insurance;
  • A documented assessment of need;
  • Defensible hire rates;
  • Daily hire monitoring;
  • A complaints procedure;
  • Trained claims handlers; and
  • A plan for disputed and irrecoverable charges.

How Lacey Solicitors Credit Hire Lawyers Can Help

 

Lacey Solicitors is an insurance law firm acting in road traffic, credit hire and accident-related claims.

We understand the accident management industry from more than one perspective. We advise in claims involving motorists and accident management companies, but we also act for insurers scrutinising hire, repair, recovery and storage charges.

That experience allows us to identify the issues that commonly result in claims being challenged:

  • Poorly drafted agreements;
  • Inadequate evidence of need;
  • Unsupported daily rates;
  • Excessive hire periods;
  • Repair delays;
  • Regulatory uncertainty;
  • Conflicts between customers and service providers; and
  • Insufficient evidence to prove liability.

Lacey Solicitors are against artificial or inflated claims. We seek to help establish lawful arrangements, produce clear documentation and promote the efficient resolution of legitimate losses.

We can assist with:

  • Reviewing the proposed business model;
  • Assessing potential regulatory requirements;
  • Drafting credit hire and credit repair agreements;
  • Reviewing recovery and storage documentation;
  • Preparing supplier and referral agreements;
  • Developing claims-handling procedures;
  • Advising on disputed charges;
  • Training claims handlers;
  • Engaging with insurers; and
  • Conducting or defending credit hire litigation.

A Sustainable Accident Management Business

 

There is a legitimate place for professionally operated accident management companies in Northern Ireland and elsewhere.

The most sustainable businesses will not be those that simply accumulate the largest invoices. They will be those that provide a necessary service, charge defensible rates, minimise avoidable delay and preserve the evidence required to justify each claim.

A fair and properly documented claim is more likely to be resolved without unnecessary litigation. That is in the interests of the motorist, the accident management company and the insurer.

Anyone considering setting up an accident management company in Northern Ireland should obtain legal, regulatory, insurance and financial advice before trading and reach out to Ruaidhrí Austin Partner in charge of credit hire.

Credit Hire, Vehicle Repairs and VAT: What McKinstry Means for Motor Claims in Northern Ireland

Posted on by Ruaidhri Austin

The recent Northern Ireland High Court decision in McKinstry Skip Hire Ltd v Highway Insurance Company Ltd [2026] NIKB 36 provides important clarification on the recovery of vehicle repair costs and VAT following a car crash.

The court judgment also highlights an important distinction in motor claims: the physical damage caused to a vehicle after a crash and the consequential cost of hiring a replacement vehicle are not governed by exactly the same principles. That distinction can have significant consequences when insurers raise issues concerning mitigation, repairs, credit hire or VAT.

What Was Decided in McKinstry Skip Hire?

 

The plaintiff in McKinstry was VAT registered. One of the issues before the High Court was whether its claim for damage to its vehicle should include VAT where, if repairs were subsequently carried out, the plaintiff might be able to recover that VAT from HMRC.

The High Court held that the VAT element was recoverable.

The reasoning is important.

The legal loss is not simply the invoice which a plaintiff later receives from a repairer. The loss crystalises when the vehicle is damaged and its value is reduced. Where the vehicle is economically repairable, the reasonable cost of repair is ordinarily used as the measure of that diminution in value.

Accordingly, the repair cost provides evidence of the value of the damage sustained rather than representing a claim merely for expenditure subsequently incurred.

That distinction meant that the plaintiff’s VAT position did not reduce the damages recoverable from the defendant.

Does a Vehicle Actually Have to Be Repaired?

 

No.

The judgment reinforces the principle that the individuals entitlement to damages does not necessarily depend upon the vehicle actually being repaired after a crash.

A plaintiff may decide to repair the vehicle, sell it in its damaged condition or deal with the damages recovered in another way.

The court is concerned with assessing the loss caused by the accident. It is not ordinarily the role of the court or the insurance company to supervise what the plaintiff decides to do with the damages awarded.

This is significant where an insurer seeks to make payment of vehicle damage conditional upon repairs first being completed.

McKinstry did not specifically deal with a situation where the cost of repairs was sought in advance, so it would be wrong to suggest that the High Court determined that precise issue in every circumstance.

However, its reasoning presents a clear difficulty with any argument that suggests that no recoverable vehicle damage exists until a plaintiff has actually paid for repairs.

What Does McKinstry Mean for VAT on Vehicle Damage Claims?

 

The immediate significance of McKinstry is particularly clear for commercial and VAT-registered plaintiffs.

Insurers have traditionally raised arguments that a VAT-registered business should recover vehicle repair costs net of VAT because it may subsequently be able to reclaim the VAT from HMRC.

The High Court rejected that approach in McKinstry.

The plaintiff’s damages were assessed by reference to the diminution in value caused by the accident, with reasonable repair costs providing the measure of that loss. The plaintiff’s subsequent VAT arrangements did not reduce the defendant’s liability for that loss.

For commercial vehicle claims in Northern Ireland, the judgment is therefore an important authority when the recoverability of VAT is placed in issue.

What Does This Mean for Accident Management and Credit Hire Claims?

 

The effect of McKinstry is that care needs to be taken not to apply the law relating to one head of loss indiscriminately to another.

A defendant may have a legitimate mitigation argument concerning the length of a credit hire period.

That does not necessarily mean that the same mitigation argument can be used to reduce the underlying physical damage to the Plaintiff’s vehicle.

Equally, the fact that vehicle damage crystallises when the accident occurs does not give a plaintiff an unrestricted right to allow consequential credit hire charges to continue regardless of the circumstances.

The correct analysis depends upon identifying precisely which loss is being claimed.

The Practical Position

 

Following McKinstry, three principles are particularly important in Northern Ireland motor claims.

First, damage to the vehicle itself is suffered when the accident occurs, with reasonable repair costs ordinarily providing the measure of the diminution in value.

Secondly, the fact that repairs have not yet been undertaken does not, by itself, mean that the plaintiff has suffered no recoverable vehicle damage.

Thirdly, credit hire remains a consequential loss and questions concerning the need for a replacement vehicle, the rate charged, the period of hire and mitigation remain capable of detailed scrutiny.

Keeping those principles separate is important for plaintiffs, insurers, accident management companies and their legal representatives.

Specialist Advice on Credit Hire and Motor Claims

 

Credit hire and vehicle damage disputes can involve difficult questions concerning mitigation, repair evidence, hire duration, basic hire rates, VAT and the interaction between a claimant, insurer and accident management company.

Lacey Solicitors acts in motor and insurance litigation across Northern Ireland and Ireland, including complex credit hire and vehicle damage disputes.

If you require advice in relation to a credit hire claim, vehicle repair dispute or associated motor insurance litigation, contact Ruaidhrí Austin, Partner in charge of Credit Hire to discuss the circumstances of the case.

Passenger Secures €10,500 Settlement After Suffering Burns from Hot Drink on Flight

Posted on by Lacey Solicitors

Suffering a burn injury on a plane after a hot drink was spilled can potentially give rise to a personal injury claim. Lacey Solicitors recently acted for a passenger who suffered a burn injury after a member of cabin crew on a long haul flight from Dublin spilled a hot drink. The passenger has received €10,500 in compensation.

Whilst the most common personal injury claim usually arise from road traffic accidents, accidents at work or in public places, non-fault accidents can happen almost anywhere – including at 30,000 feet!

Paul Delahunt recently acted for a client who was travelling on a long distance flight from Dublin to New York when a hot drink being served by a flight attendant was accidentally spilled over them.

The incident caused a burn injury and resulted in a claim being pursued against the airline.

Following negotiations on behalf of our client, and without having to issue any legal proceedings, the claim was successfully concluded for €10,500.00.

Can You Claim Compensation from a Burn Injury on a Plane?

 

As always, each case is determined on the basis of the accident circumstances and the merits of the case.

Airlines and their cabin crew are responsible for taking reasonable care when serving passengers during a flight.

A claim may arise where, for example:

  • a flight attendant spills a hot drink directly onto a passenger;
  • a cup is dropped while being handed to a passenger;
  • hot liquid is knocked over during cabin service;
  • a drink is served in an unsafe manner; or
  • another incident involving food or drink causes an injury on board the aircraft.

Any heated drinks can cause significant burn injuries if they are spilled onto a passenger.

The legal position will depend upon the circumstances of the accident, the journey being undertaken and the applicable law.

The Montreal Convention and Injuries on Aircraft

 

Claims involving injuries suffered during international air travel can differ from an ordinary personal injury claim.

The Montreal Convention 1999 provides an international framework governing certain claims against air carriers. Article 17 deals with death or bodily injury suffered by a passenger where the accident causing the injury took place on board the aircraft or during embarking or disembarking.

Importantly for passengers who suffer scalding injuries, hot drinks being spilled on aircraft have previously been considered by the courts.

In the European case GN v ZU (Case C-532/18), a child suffered second-degree scalding when hot coffee served during a flight tipped over. The Court considered the incident capable of falling within the concept of an “accident” under Article 17 of the Montreal Convention; the incident did not have to result from a risk unique to aviation.

This illustrates why passengers should not assume that an injury is simply an unfortunate mishap for which nothing can be done.

Our Dublin Burn Injuries Case

 

In our client’s case, the burn injury occurred on the plane when a hot drink was spilled by a flight attendant during the flight from Dublin.

We were instructed to pursue the resulting personal injury claim. We successfully negotiated settlement in the sum of 10,500 Euros.

Every personal injury claim is different and the settlement in one case does not determine the value of another.

The value of a burn injury claim will depend upon matters such as the nature and severity of the injury, recovery, any continuing symptoms, scarring and financial losses arising from the accident.

How Much Compensation Can You Receive for a Burn Injury?

 

There is no fixed amount of compensation for a burn or scald injury.

A relatively minor burn which heals quickly will ordinarily be treated differently from an injury involving significant scarring or permanent symptoms.

When assessing a claim, consideration may be given to:

  • the severity of the initial burn;
  • the part of the body affected;
  • pain and discomfort;
  • the length of the recovery period;
  • whether scarring remains;
  • whether further treatment is required;
  • psychological effects associated with visible scarring;
  • loss of earnings; and
  • other expenses caused by the accident.

What Should You Do if You Are Burned on a Plane?

 

If a hot drink is spilled on you during a flight, your immediate priority should of course be your health and safety.

Where possible, however, it can also help to preserve evidence relating to what happened.

You should also speak to a solicitor as soon as possible to determine whether there is a case to be brought.

Claims involving air travel can raise questions about which law applies, where proceedings can be brought and whether an international convention governs the claim. They should therefore not automatically be approached in the same way as an ordinary accident claim.

Can I Claim Against an Airline From Ireland or Northern Ireland?

 

The fact that an accident happened on an aircraft outside Northern Ireland does not necessarily mean that a passenger living in Northern Ireland cannot pursue a claim.

The appropriate jurisdiction and legal route will depend upon factors including the flight, airline, departure and destination airports and the circumstances of the accident.

Our solicitors can examine those issues at the outset and advise whether a claim can be pursued.

At Lacey Solicitors, we act for people who have suffered injuries in a wide range of circumstances. Our recent 10,500 Euro settlement following a hot drink burn on an aircraft is an example of an accident which might initially appear unusual, but which can nevertheless give rise to a valid personal injury claim.

An injury does not have to happen on a road, in a workplace or in a shop for you to seek legal advice.

If you have been burned by a hot drink on a flight, injured by cabin crew or suffered another injury while travelling by air, contact our Belfast personal injury solicitors to discuss what happened and whether you may be entitled to compensation.

 

 

Mandatory Mediation in Ireland: High Court Confirms Power to Order Mediation

Posted on by Lacey Solicitors

Mandatory mediation in Ireland has taken aimportant step forward following the recent decision of Mr Justice Twomey in J Burke & Associates Ltd v Patrick O’Connell [2026] IEHC 314.

Can an Irish court order parties to mediate against their wishes?

The recent decision of Mr Justice Twomey in J Burke & Associates Ltd v Patrick O’Connell [2026] IEHC 314 provides an important answer: in appropriate cases, the Irish courts have an inherent jurisdiction to direct parties to engage in mediation, even where one or both parties object.

The judgment represents a significant development in Irish civil litigation. It moves the discussion beyond whether a court can simply invite parties to mediate and confirms that, in suitable circumstances, mediation can become a court directed procedural step.

Importantly, however, the Court cannot force parties to settle.

The distinction is fundamental. A party may be required to attend mediation and participate in the process, but the decision whether to compromise remains voluntary.

The judgment is particularly significant when considered alongside Practice Direction HC141, which came into operation on 3 June 2026 and reinforces the importance of compliance with the Mediation Act 2017 and related ADR obligations.

Together, these developments send a clear message: mediation is becoming an increasingly important part of litigation strategy in Ireland, rather than something to be considered only when a case is approaching trial.

What is the Burke v O’Connell decision about?

 

The proceedings arose from a dispute between an engineering company and a farmer concerning approximately €252,004 in allegedly unpaid professional fees.

The dispute had been before the High Court for approximately ten years and was approaching the point where it could be set down for trial.

The plaintiff sought an order inviting or directing the parties to engage in mediation.

The application was significant because the defendant did not wish to mediate.

Among the reasons advanced against mediation were that the defendant had already incurred substantial legal costs, his position on the fees was unlikely to change, mediation was being suggested relatively late in the proceedings, only one party appeared willing to participate, and mediation itself would involve additional expense.

The Court therefore had to confront a question of considerable practical importance:

Can an Irish court order unwilling parties to mediate, or is its role limited to inviting them to do so?

The High Court confirms an inherent jurisdiction to order mediation

 

After considering the constitutional, statutory and procedural issues, Twomey J concluded that the Court does have an inherent jurisdiction to order parties to engage in mediation in appropriate cases.

The Court’s conclusion was based principally on its inherent power to regulate its own proceedings and to ensure that the administration of justice operates efficiently and proportionately.

The judgment considered a range of factors supporting that jurisdiction, including the importance of efficient use of court resources, the development of mediation under Irish legislation and court practice, the potential to reduce litigation costs and the persuasive authority of developments in England and Wales.

The Court was careful, however, to emphasise that the power is not unlimited.

Before directing mediation, the Court should be satisfied that there is a prospect that mediation may either resolve the dispute or narrow the issues, and that requiring the parties to mediate would be proportionate.

Any delay caused by mediation must also be weighed against the potential benefits.

This is therefore not a rule that every civil dispute must now go to mandatory mediation.

Rather, it is a recognition that the Court has another tool available when managing proceedings.

Mandatory mediation does not mean mandatory settlement

 

Perhaps the most important practical distinction in Burke v O’Connell is between participating in mediation and settling a dispute.

Mediation remains a voluntary process in terms of its outcome.

A court can direct parties to attend and participate in the process. It cannot require either party to:

  • accept an offer;
  • make a concession;
  • compromise a claim;
  • sign a settlement agreement; or
  • abandon its right to have the dispute determined by the Court.

If mediation fails, the parties retain their right to proceed with the litigation.

That distinction was central to the Court’s conclusion that court directed mediation does not, in itself, violate the constitutional right of access to the courts.

The direction affects the process and timing of litigation; it does not remove the ultimate right to a judicial determination.

Why did the Court consider mandatory mediation justified?

 

The economic reality of the underlying dispute was particularly important.

The claim was worth approximately €252,000, but the Court considered that the legal costs associated with taking the matter through a High Court trial could potentially exceed the amount in dispute.

The judgment records the possibility of combined brief fees alone reaching approximately €150,000, before other legal costs were taken into account.

The Court also observed that it was possible that the losing party could ultimately face costs of €300,000 or more in resolving a dispute worth €252,004.

That creates an obvious problem.

A dispute can become too expensive to continue, but too expensive to abandon.

This is one of the most important practical themes running through the judgment.

Where substantial costs have already been incurred, parties may feel locked into litigation because abandoning the case means accepting those costs without the prospect of recovering them.

Continuing towards trial, however, exposes both sides to another substantial layer of expense.

Mediation can provide a mechanism for breaking that cycle.

Mediation as a case management tool

 

The significance of Burke therefore extends beyond settlement.

The Court recognised that mediation can serve several purposes even where a complete settlement is unlikely.

It may:

  • resolve the dispute entirely;
  • narrow the issues for trial;
  • clarify the parties’ respective positions;
  • test the strengths and weaknesses of each side’s case;
  • reduce the number of witnesses or experts required;
  • reduce the length of a trial; and
  • avoid unnecessary expenditure of court resources.

That is an important change in perspective.

Mediation should not necessarily be viewed as a binary question of “settlement or failure.”

A mediation which reduces a three week trial to a substantially shorter hearing may still have delivered a significant benefit.

Similarly, an unsuccessful mediation may expose weaknesses in a party’s position which influence later settlement negotiations.

The constitutional right of access to the courts

 

One of the obvious arguments against mandatory mediation is that parties have a constitutional right to access the courts.

The High Court rejected the proposition that court directed mediation is inherently inconsistent with that right.

The reasoning was essentially one of proportionality.

A direction to mediate does not prevent a party from ultimately obtaining a hearing. It merely requires the party to attempt another method of resolving the dispute first.

The Court also considered the wider public interest.

Court time is a finite public resource. If a dispute can reasonably be resolved through mediation, avoiding a lengthy trial may free court resources for other litigants whose disputes genuinely require judicial determination.

In that sense, mediation can potentially protect access to justice rather than undermine it.

The judgment therefore places mediation within the broader responsibility of the courts to ensure that litigation is conducted in a manner which is just, expeditious and proportionate.

What about the Mediation Act 2017?

 

The decision does not displace the Mediation Act 2017.

Instead, it sits within the broader statutory framework that has progressively embedded mediation into Irish civil litigation.

Section 14 of the Mediation Act 2017 places obligations on solicitors to advise clients, before proceedings are commenced, to consider mediation as a means of resolving the dispute.

Section 16 gives the Court power to invite parties to consider mediation.

The Court also considered the significance of provisions allowing costs consequences where a party unreasonably refuses to engage with mediation.

This wider statutory landscape was relevant to the Court’s conclusion that recognising an inherent jurisdiction to direct mediation was consistent with the development of Irish civil procedure.

The Court did not regard section 16’s express reference to the power to “invite” parties to mediate as necessarily excluding other powers available to the Court when controlling its own process.

Practice Direction HC141: mediation is now firmly on the procedural agenda

 

The significance of Burke v O’Connell is reinforced by Practice Direction HC141.

Issued by the President of the High Court on 20 May 2026 and effective from 3 June 2026, HC141 draws practitioners’ and litigants’ attention to the obligations contained in the Mediation Act 2017 and related legislation. It specifically highlights the importance of mediation and ADR and the potential consequences of non compliance.

The Practice Direction emphasises that the statutory obligations surrounding mediation are not simply administrative formalities.

For solicitors, this means that advice concerning mediation should be properly considered and documented.

For litigants, it means that decisions about mediation should form part of the substantive litigation strategy.

And for insurers and professional indemnity claims handlers, it reinforces the need for mediation to be considered alongside liability, quantum, reserving and litigation cost exposure.

The Courts Service itself describes HC141 as highlighting the importance of mediation and ADR and reminding practitioners and litigants of the potential consequences of failing to comply with their obligations.

Costs consequences: the direction of travel

 

Burke v O’Connell should also be viewed against a series of Irish decisions concerning mediation and costs.

The courts have increasingly demonstrated that mediation advice and engagement can have consequences when costs are ultimately considered.

In Byrne v Arnold [2024] IEHC 308, a costs penalty was imposed in circumstances involving failure to comply with the statutory mediation advice requirements.

Subsequent decisions, including Leahy v Pepper and V Media Doo v Techads Media Ltd [2025] IEHC 430, have continued the judicial focus on meaningful compliance with mediation obligations.

The practical lesson is important.

The question is increasingly not simply whether mediation was mentioned on the file. It is whether it was properly considered.

A refusal to mediate should therefore be capable of being objectively justified.

That does not mean every refusal will be unreasonable.

There will be cases where mediation is premature, disproportionate or unlikely to assist.

But practitioners should be increasingly cautious about adopting an automatic position that mediation is unnecessary simply because their client considers its case to be strong.

What does this mean for litigants?

 

For parties involved in Irish civil litigation, mediation should be treated as a continuing strategic consideration.

It should not necessarily be a one off decision made immediately before proceedings are issued.

The appropriate timing may change as the litigation develops.

For example, mediation may initially be premature because:

  • discovery is incomplete;
  • expert evidence is unavailable;
  • quantum remains uncertain;
  • important witnesses have not been interviewed; or
  • the issues have not yet sufficiently crystallised.

Later, however, those obstacles may disappear.

The case may then become particularly suitable for mediation.

Practitioners should therefore consider revisiting the issue after significant procedural milestones, including discovery, expert reports, exchange of witness statements and interlocutory applications.

What should insurers and claims professionals do?

 

The decision is particularly relevant to insurers handling professional indemnity, construction, engineering and other complex commercial claims.

For an insurer, the decision to mediate should not be based solely on the question:

“Do we think we will win?”

The better question is:

“What is the most proportionate way of managing the overall litigation risk?”

That assessment should include:

  • the value of the claim;
  • the likely legal costs to trial;
  • the costs already incurred;
  • the likelihood of an appeal;
  • expert and investigation costs;
  • the strength and weaknesses of the liability case;
  • quantum uncertainty;
  • the possibility of narrowing issues through mediation;
  • the availability and suitability of a mediator; and
  • the likely commercial consequences of continued litigation.

A case can have a strong defence and still be an excellent candidate for mediation.

Equally, a mediation should not be pursued simply because it is fashionable.

If critical evidence is unavailable, the parties may not yet be in a position to make informed settlement decisions.

Preparation matters

 

The growing judicial emphasis on mediation should not be interpreted as meaning that every dispute should be sent to a mediator as quickly as possible.

Good mediation is usually informed mediation.

Parties need enough information to evaluate their respective positions.

In complex professional negligence, construction and engineering disputes, that may include expert evidence on liability, causation and quantum.

A mediation conducted before the parties understand the evidence can simply add another layer of expense.

The objective should therefore be to identify the point at which the parties have sufficient information to make rational settlement decisions without waiting until they have incurred every possible litigation cost.

That is where mediation can become a genuine risk management tool rather than simply another procedural event.

Choosing the right mediator

 

The choice of mediator can make a substantial difference to both the conduct and outcome of a mediation.

In straightforward commercial disputes, a mediator with broad commercial experience may be entirely appropriate. In complex professional indemnity, construction or technical litigation, however, the parties may benefit from a mediator who can quickly understand the underlying legal, factual and technical issues.

The mediator’s role is not to decide who is right. It is to challenge assumptions, test litigation risk, identify barriers to settlement and help the parties explore solutions which may not be apparent from their respective litigation positions.

Our own experience of mediations in both the Four Courts in Dublin and the High Court in Northern Ireland has also demonstrated that the style of the mediator can be just as important as their technical expertise.

Different mediators adopt very different approaches. Some favour a highly collaborative process, encouraging the parties to work gradually towards common ground. Others adopt a considerably more assertive style, directly challenging entrenched positions and, where necessary, applying a degree of commercial reality to both sides.

There are cases where that more robust approach can be particularly effective. Parties who have been involved in litigation for a considerable period can understandably become fixed in their respective positions. An experienced and assertive mediator can sometimes “knock heads together”, challenge unrealistic expectations and refocus the parties on the risks, costs and commercial consequences of continuing the dispute.

In our experience, that more interventionist style is encountered more frequently in mediations in the Republic of Ireland, whereas mediation in Northern Ireland in our experience can often adopt a more collaborative or facilitative approach. That is not, of course, a rigid distinction: the approach will depend heavily upon the individual mediator, the parties and the nature of the dispute.

The important point is that mediator selection should not be treated as an administrative afterthought. The parties should consider not only the mediator’s legal or technical expertise, but also whether their personality and mediation style are likely to suit the particular dispute and the personalities involved.

A well chosen mediator can therefore add considerable value even where the parties initially appear to be far apart.

What Burke v O’Connell does not mean

 

It would be wrong to suggest that the High Court has made mediation universally mandatory.

It has not.

The judgment establishes an inherent jurisdiction to order mediation in appropriate circumstances.

The Court must still consider the facts of the individual case, including proportionality, timing, the prospects of resolving or narrowing the dispute and the impact on access to the courts.

It is also important that no formal mediation order was ultimately made in Burke.

Although Twomey J concluded that this was a case in which he would have considered a direction to mediate appropriate, the defendant subsequently indicated a conditional willingness to mediate. The Court therefore did not need to make the formal order at that stage.

The judgment nevertheless provides important guidance because the Court expressly considered the jurisdiction and concluded that it exists.

A new question for litigation strategy

 

Historically, the strategic question for a litigant might have been:

“Should we mediate?”

Following Burke v O’Connell, there is potentially another question:

“What happens if we refuse?”

A party which unreasonably refuses an invitation to mediate may already face costs implications.

There is now the additional possibility, in an appropriate case, of a court directing the parties to mediate.

That possibility may itself encourage parties to engage voluntarily.

The practical effect could therefore be greater than the number of formal court orders actually made.

If parties know that an unreasonable refusal could ultimately result in a court directed mediation, they may be more willing to engage before an application becomes necessary.

Litigation as a last resort?

 

Taken together, the Mediation Act 2017, recent costs decisions, Practice Direction HC141 and Burke v O’Connell demonstrate a clear evolution in Irish civil litigation.

Mediation is no longer simply an alternative sitting alongside litigation.

It is increasingly being incorporated into the management of litigation itself.

The Court’s message is not that every dispute should settle.

Nor is it that parties should abandon legitimate claims or defences.

Rather, it is that litigation should be conducted proportionately and that parties should give genuine consideration to whether the dispute can be resolved, or at least narrowed, without consuming disproportionate time and resources.

For complex commercial disputes, professional negligence claims, construction disputes and professional indemnity litigation, that is an important shift.

Conclusion

 

J Burke & Associates Ltd v O’Connell [2026] IEHC 314 is a significant development in Irish mediation law.

The High Court has confirmed that, in appropriate circumstances, it has an inherent jurisdiction to order parties to attempt mediation even where they do not wish to do so.

That does not mean compulsory settlement.

The parties retain control over the outcome.

What the Court can require is participation in a process designed to test whether the dispute can be resolved or narrowed before further substantial public and private resources are committed to litigation.

The decision should therefore prompt a change in mindset among litigants, solicitors, insurers and claims professionals.

Mediation should be considered early, realistically and repeatedly as a dispute develops.

A decision not to mediate should have a clear rationale.

And where the cost of continuing litigation begins to approach, or potentially exceed, the value of the dispute, the question should no longer be whether mediation is merely an alternative to litigation.

It may be one of the most important tools available for managing the litigation itself.

For litigation and insurance lawyers in Ireland, the message from Burke v O’Connell is clear: mediation is no longer simply something the Court can suggest. In an appropriate case, it is something the Court can direct.

How Northern Ireland Courts Assess Damages for Multiple Injuries

Posted on by Damian McGeady (Partner)

Valuing personal injury claims involving multiple injuries remains one of the most nuanced and, at times, unpredictable aspects of litigation in Northern Ireland. While the Guidelines for the Assessment of General Damages in Northern Ireland (the Green Book) provide a structured starting point for individual injuries, they do not prescribe how those injuries should be combined into a single global award.

For insurers and practitioners, the difficulty lies not in identifying the value of each injury in isolation, but in understanding how the courts will approach the aggregation exercise. This is where judicial discretion, shaped by appellate authority, becomes decisive.

The leading authority remains Wilson v Gilroy, a case which continues to underpin the Northern Ireland approach. More recently, the High Court decision in McAuley v Russell demonstrates how those principles are applied in practice.

The Starting Point: Individual Assessment Under the Green Book

 

The starting point in any Northern Ireland personal injury claim is the Green Book. The sixth edition reinforces what has long been understood: the Guidelines are just that—guidelines.

They are not intended to operate as a mechanistic tool or a “ready reckoner”. As expressly stated, the assessment of damages is not an exact science but a process requiring the judge to apply experience, judgment and an “innate sense of fairness” to the individual case.

Importantly, the Green Book itself recognises that injuries frequently present in combination and that their effects may be overlapping and interrelated, rather than discrete.

This is a critical point. It explains why Northern Ireland courts do not simply total the value of each injury and treat that figure as the final award.

Lord Chief Justice Kerr’s “Global Check” 

 

In practice, the court undertakes a two-stage process.

First, each injury is assessed individually by reference to the relevant Green Book bracket. This produces an aggregate figure, which represents the theoretical value of the injuries if considered in isolation.

However, that figure is only provisional.

The second stage—where the real judicial exercise takes place—is the global evaluation of that total. This is where the principles in Wilson v Gilroy become decisive.

In Wilson, the Court of Appeal made clear that in cases involving multiple injuries, the aggregate figure must be tested by stepping back and considering whether it properly reflects the plaintiff’s overall condition.

The court described this as an “intuitive assessment”, requiring the judge to evaluate whether the combined award is proportionate to the totality of the injuries suffered.

What is particularly important is what the Court did not do. It did not prescribe a formula, a percentage reduction, or a structured methodology. Instead, it deliberately preserved judicial flexibility.

This means that:

  • A reduction may be applied
  • No reduction may be applied
  • The extent of any adjustment will vary from case to case

The exercise is inherently fact-sensitive and depends on how the injuries interact in reality, rather than how they appear when listed individually.

Why Reduce Damages at All?

 

The rationale behind the global check lies in the avoidance of double counting.

Where a plaintiff suffers multiple injuries, there will often be:

  • Overlap in symptoms (for example, pain contributing to psychiatric distress)
  • Overlap in functional limitation (such as mobility issues arising from multiple orthopaedic injuries)
  • A single, unified impact on quality of life

If each injury were compensated in full without adjustment, the resulting figure could exceed what is necessary to restore the plaintiff, so far as money can, to their pre-accident position.

This aligns with the fundamental compensatory principle articulated in the Green Book: damages should place the injured party, as far as possible, in the position they would have been in but for the wrongdoing.

McAuley v Russell : A Modern Application

 

The principles set out in Wilson were applied in a modern context in McAuley v Russell, a case which provides a clear illustration of how the courts approach multi-injury claims today.

The plaintiff in McAuley sustained a wide range of injuries arising from a road traffic collision, including significant orthopaedic trauma, facial injuries, dental damage and a recognised psychiatric condition. The court carefully assessed each injury by reference to the Green Book, ultimately arriving at an aggregate figure of £250,000.

However, consistent with Wilson, the court did not stop there. Mr Justice Humphreys undertook the global check and concluded that the total required adjustment. The final award for general damages was reduced to £225,000.

This reduction, while relatively modest in percentage terms, is significant in principle. It confirms that the aggregation exercise is only ever provisional and that the court retains a broad discretion to ensure that the final figure is proportionate to the plaintiff’s overall condition.

Importantly, the judgment reinforces that this is not a rigid or formulaic process. Another judge, faced with the same facts, may have applied a greater or lesser reduction. That inherent variability is a defining feature of the Northern Ireland system.

Judicial Discretion and Appellate Restraint

 

One of the most important practical features of this area is the limited scope for appellate interference.

As confirmed in Wilson, an appellate court will not disturb an award unless it is based on an error of principle or is a wholly erroneous estimate.

This creates a high threshold for appeal and reinforces the central role of the trial judge. In effect, the global assessment is entrusted to the judge’s experience and evaluation of the evidence, and that assessment will rarely be overturned.

For insurers, this makes early and accurate valuation all the more important.

A Contrast with Ireland and the “Uplift” Approach

 

The position south of the border provides an interesting contrast. Under the Personal Injuries Guidelines, the Irish courts have developed a more structured methodology for dealing with multiple injuries, centred on the concept of a dominant injury and we have previously outlined Lacey Solicitors six step assessment of the Uplift.

The typical approach involves identifying the most significant injury and then applying an uplift to reflect additional injuries. The Irish courts have gone further in recent years, confirming that in certain cases the uplift can exceed the value of the dominant injury itself. This has been recognised in cases such as McHugh v Ferol and subsequently endorsed by the Court of Appeal in Zaganczyk.

While this approach introduces a greater degree of structure and predictability, it also brings its own complexities, particularly in cases involving psychiatric injury or where multiple injuries are of comparable severity.

By contrast, Northern Ireland has consciously retained a more flexible, discretionary model. There is no requirement to identify a dominant injury and no prescribed uplift mechanism. Instead, the focus remains on the overall fairness of the award.

Lacey Solicitors Advice to Insurer Clients

 

From an insurer’s perspective, the Northern Ireland approach requires careful and strategic handling.

The absence of a rigid formula means that valuation must go beyond simply applying Green Book brackets. The key question is always how the injuries interact in practice and whether the aggregate figure accurately reflects the claimant’s overall condition.

Particular attention should be paid to areas of overlap, especially where physical and psychiatric injuries are closely linked. There is often significant scope to argue that the combined impact has been overstated.

At the same time, the discretionary nature of the exercise introduces an element of unpredictability. Different judges may take different views on what constitutes a fair overall award, and those decisions will be difficult to challenge on appeal.

Conclusion

 

The assessment of damages for multiple injuries in Northern Ireland is not a mechanical exercise but a holistic evaluation grounded in judicial discretion.

The Green Book provides the framework, but it is the global check, as articulated in Wilson v Gilroy and applied in McAuley v Russell, that ultimately determines the outcome.

For insurers, the key lies in understanding that the aggregate figure is never the end of the analysis. The real battleground is the final, intuitive assessment of what is fair and proportionate in the circumstances of the case.

 

General Damages for Allergic Reactions to Contaminated Food in Northern Ireland: A Gap in the Green Book

Posted on by Damian McGeady (Partner)

 

When contaminated or mislabelled food triggers an allergic reaction in Northern Ireland, courts must assess general damages despite the absence of a specific category within the Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland (the “Green Book”).

Practitioners therefore often rely on analogous brackets such as food poisoning, neurological injury, or epileptic conditions when valuing these claims. This lack of direct guidance can create uncertainty in both settlement negotiations and litigation, particularly where the reaction involves anaphylaxis, seizures, or emergency hospital treatment.

As food allergy claims become increasingly common, this gap in the damages framework is becoming more apparent.

The Role of the Green Book in Assessing General Damages

 

In Northern Ireland, courts assess general damages for personal injury claims by reference to the Green Book damages guidelines.

The purpose of the Guidelines is to promote consistency, predictability and proportionality in the assessment of damages across personal injury litigation.

The Green Book provides damages brackets covering a wide range of injuries including:

  • orthopaedic injuries
  • psychiatric injury
  • neurological damage
  • illness caused by toxins or contaminated substances

For practitioners dealing with food contamination claims, the most relevant section is typically the category addressing illness caused by food poisoning.

However, the structure of that section reflects gastrointestinal illness, rather than allergic reactions caused by allergen exposure.

Damages Guidance for Food Poisoning Claims

 

The Green Book contains brackets for illness caused by food poisoning, typically involving symptoms such as:

  • vomiting
  • diarrhoea
  • abdominal pain
  • fever
  • temporary gastrointestinal illness

These cases generally involve short-term illness caused by contaminated food, with recovery occurring within a limited period.

Higher awards may arise where:

  • symptoms persist for longer periods
  • hospital treatment is required
  • complications develop

However, these brackets are primarily designed to address gastrointestinal illness, not anaphylactic reactions triggered by allergen contamination.

Allergic Reactions to Contaminated Food

 

A growing number of personal injury claims involve allergic reactions triggered by contaminated or mislabelled food and we previously wrote about the experience of our client Ciara.

These claims frequently arise where:

  • restaurants fail to disclose allergens
  • cross-contamination occurs during food preparation
  • packaged food products are incorrectly labelled
  • food safety procedures are inadequate

For individuals with severe allergies, exposure to allergens such as nuts, shellfish, dairy or sesame can trigger an immediate and potentially life-threatening reaction.

Symptoms may include:

  • anaphylaxis
  • respiratory distress
  • collapse or loss of consciousness
  • seizures
  • emergency treatment with adrenaline

Although these episodes may sometimes be short-lived, they can involve significant medical intervention and considerable distress for the individual.

When Allergic Reactions Cause Seizures

 

A particularly complex issue arises where an allergic reaction to contaminated food results in seizure activity.

Seizures may occur due to:

  • severe anaphylactic reactions
  • oxygen deprivation caused by respiratory distress
  • extreme physiological stress during the reaction

In many cases the seizure is an isolated event, and the claimant does not develop epilepsy.

Nevertheless, the episode may involve:

  • ambulance attendance
  • emergency treatment
  • hospital admission
  • temporary neurological symptoms

Despite the seriousness of such events, the Northern Ireland Green Book damages guidelines contain no specific bracket addressing seizures caused by allergic reactions.

How Are General Damages Assessed for Allergic Reactions to Contaminated Food in Northern Ireland?

 

Where contaminated food causes an allergic reaction, courts must assess general damages by examining the nature and severity of the medical episode.

Because the Green Book does not contain a specific bracket for allergic reactions or anaphylaxis, practitioners and courts often rely on analogous injury categories when valuing these claims.

Possible comparators include:

Food Poisoning

The food poisoning brackets may provide a starting point, particularly where the symptoms are short-lived.

However, these brackets may undervalue cases involving anaphylaxis or seizure activity, as they are primarily designed to address gastrointestinal illness.

Epileptic Conditions

Where a seizure occurs, practitioners may look to the brackets relating to epileptic conditions.

This comparison is often imperfect where:

  • the claimant does not suffer from epilepsy
  • the seizure is an isolated episode
  • the seizure was triggered solely by the allergic reaction.

Neurological Injury

In some cases, the injury may also be compared with minor neurological injury.

Again, this approach requires courts to rely heavily on analogy rather than direct guidance.

Why This Gap in the Green Book Matters

 

The absence of specific guidance for allergic reaction claims caused by contaminated food creates several practical difficulties.

Inconsistent Settlement Values

Without a clear damages bracket, similar claims may be valued very differently.

Uncertainty for Practitioners

Solicitors advising clients may find it difficult to predict likely damages with confidence which normally means more cases proceeding to court.

Increasing Relevance

Food allergy claims have become more common due to:

  • increased awareness of food allergies
  • stricter allergen labelling requirements
  • greater public awareness of allergen risks

As these claims become more frequent, the absence of clear damages guidance becomes increasingly significant.

Factors Likely to Influence General Damages

 

In the absence of specific guidelines, courts assessing general damages for allergic reactions to contaminated food may consider:

  • the severity of the allergic reaction
  • whether anaphylaxis occurred
  • the presence of seizures or neurological symptoms
  • the duration of symptoms
  • whether hospital admission was required
  • the extent of emergency medical treatment
  • the psychological impact of the incident

These factors may ultimately determine whether the injury is best viewed as:

  • serious illness
  • neurological injury
  • or a severe but temporary medical episode.

Conclusion on Claims for Allergic Reactions

 

The Northern Ireland Green Book damages guidelines provide valuable guidance across many areas of personal injury litigation. However, they contain no clear category addressing severe allergic reactions caused by contaminated food, particularly where such reactions lead to seizures or other neurological symptoms.

As allergen contamination claims become more common, this gap in the Guidelines may create increasing uncertainty in the assessment of general damages in Northern Ireland personal injury claims.

Future revisions of the Green Book may therefore benefit from including specific guidance addressing anaphylactic reactions and allergen contamination injuries, providing greater clarity for practitioners, insurers and courts.

High Court Dismisses Workplace Trip Claim: Not Every Accident Creates Liability

Posted on by Ruaidhri Austin

A recent High Court decision will be of considerable interest to insurers and injury practitioners dealing with employer liability claims in Ireland. In Sharon Walsh v Juniper Orthodontics Limited, the High Court dismissed a personal injuries action brought by a dental assistant who alleged she was injured after tripping on the hose of a vacuum cleaner while cleaning stairs at her workplace.

Delivering judgment, Mr Justice Anthony Barr emphasised an important principle that frequently arises in workplace accident litigation: the law requires employers to act reasonably, not perfectly. As the Court made clear, employers are not required to eliminate every conceivable risk that might arise during ordinary workplace activities.

The decision provides useful guidance for insurers defending employer liability claims and illustrates how courts continue to distinguish between an unfortunate accident and actionable negligence.

Background to the Claim

 

The plaintiff, aged 54, had worked as a dental assistant in a small orthodontic practice since 2007.

The accident occurred on 20 June 2016 at approximately 3pm while the plaintiff was vacuum cleaning a flight of stairs during a gap in the clinic’s patient schedule. As was common practice during quieter periods, staff members would carry out light cleaning duties when no patients were being treated.

According to the plaintiff, she switched off the vacuum cleaner and left it at the bottom of the stairs with the rigid arm resting against the banister. She then went upstairs to check whether the receptionist was on the telephone, as the noise of the vacuum cleaner could interfere with phone conversations.

While she was waiting upstairs, she alleged that the rigid arm of the vacuum cleaner fell over, causing the flexible hose to lie across one of the steps. When she returned and descended the stairs, she stepped onto the hose, lost her balance and sustained an inversion injury to her right ankle.

Medical investigations later revealed that the plaintiff had suffered an avulsion fracture of the distal fibula together with ligament damage to the ankle.

Delay in Notification

 

One feature of the case which will be familiar to insurers was the significant delay in notification of the claim.

Although the alleged accident occurred in June 2016, the employer gave evidence that he did not receive notification of the circumstances of the incident until a solicitor’s letter issued almost two years later in April 2018. By that stage, the clinic’s internal CCTV system had already overwritten any recordings from the relevant period.

This accident occured in 2016, almost two years prior to the amendment of section 8 of the Civil Liability and Courts Act 2004, which now requires a plaintiff in a personal injuries action to serve a letter of claim within one month of the cause of action.

The provision obliges the court to consider drawing appropriate inferences and, where the interests of justice so require, making costs consequences where this requirement is not complied with. For defendants and insurers, the legislative framework underscores the importance of prompt notification so that incidents can be investigated while contemporaneous evidence remains available.

Alleged Unsafe System of Work

 

The plaintiff alleged that the employer had failed to provide a safe system of work.

Engineering evidence was called on her behalf suggesting that the cleaning process was unsafe because the person vacuuming the stairs had to stop the hoover periodically and check whether the receptionist was on the telephone.

The plaintiff’s expert suggested a number of alternative safety measures, including:

  • Carrying out cleaning outside working hours
  • Installing a warning light system connected to the reception desk
  • Soundproofing the reception area

However, the court ultimately rejected the suggestion that these measures were necessary or required under the law.

The Court’s Findings

 

The High Court concluded that the incident was simply an unfortunate accident rather than the result of negligence.

Mr Justice Barr stated:

“That was a very unfortunate accident. But that is all it was. It was an accident.”

The court observed that interruptions while vacuum cleaning stairs are entirely ordinary. People frequently stop such tasks to answer a phone, attend to someone upstairs or deal with another task.

The judge stated:

“Every day up and down the country, when people are carrying out vacuum cleaning operations on a flight of stairs… the person doing the vacuum cleaning may have to stop for any number of reasons.”

Importantly, the court accepted that the vacuum cleaner arm falling over was simply something that can occur without negligence on anyone’s part.

As Mr Justice Barr explained:

“From time to time when the rigid arm of a hoover is left propped in an upright position, it will sometimes topple over and come to rest on the ground. That is not anybody’s fault, it just happens from time to time.”

Reasonableness – Not Risk Elimination

 

As always, hindsight is 20/20, but in this case, the court was quick to reject evidence advanced by the Plaintiff’s engineer of steps that should have been taken to eliminate risk.

Addressing the suggestions made by the plaintiff’s expert engineer, the court stated:

“It is always possible to come up with steps that can be taken to eradicate any possible accident. However, that is not the duty that is placed on an employer… An employer is only required to take reasonable steps to prevent an accident that is reasonably foreseeable.”

This statement provides a clear reminder that the legal standard is reasonableness, not the elimination of every conceivable hazard.

Conclusion

 

For insurers and defence practitioners, the decision reinforces several familiar but important principles:

Not every workplace accident creates liability
The courts recognise that accidents can occur even where a workplace is reasonably operated.

Reasonable systems of work remain the legal standard
Employers are required to take reasonable precautions, not eliminate all possible risks.

Expert hindsight will not necessarily establish negligence
Courts remain cautious about retrospective suggestions that theoretically safer systems could have been implemented.

Early notification of incidents remains critical
Delays in notification may result in the loss of important evidence, including CCTV or witness recollection.

The High Court’s decision in Sharon Walsh v Juniper Orthodontics Limited serves as a useful reminder that not every workplace accident will give rise to legal liability.

Where an employer has implemented a reasonable system of work and the incident arises from an ordinary everyday activity, the courts will not impose liability simply because an injury occurred.

The phrase “where there is blame, there is a claim” is an oft repeated mantra in personal injury litigation. This judgment however is a reminder that while accidents may happen, liability does not follow the same – negligence must still be proven to sustain the claim.

Pre-existing Injuries and Personal Injury Law: Understanding the “Eggshell Skull” Rule

Posted on by Ruaidhri Austin

At Lacey Solicitors, we frequently encounter cases where a plaintiff’s pre-existing condition or vulnerability complicates the assessment of liability and damages. For insurance claims handlers and legal professionals, a solid understanding of the “eggshell skull” principle is essential when evaluating personal injury claims.

What is the “Eggshell Skull” Rule?

 

The “eggshell skull” rule, sometimes called the “thin skull” rule, is a long-established doctrine in tort law. It requires that a defendant take their victim as they find them. Once a plaintiff establishes that the defendant owed a duty of care and breached that duty causing injury, the defendant is liable for the full extent of the resulting damage — even if the injury is far more severe than could have been anticipated due to a pre-existing condition or unusual vulnerability.

Importantly, while the type of injury must be foreseeable, the extent or severity of the injury need not be. Classic authority for this principle includes Smith v Leech Brain & Co Ltd [1962], where a minor burn triggered cancer due to the plaintiff’s pre-existing condition, and the defendant was held fully liable.

Physical and Psychiatric Injuries

 

The eggshell skull rule applies not only to physical injuries but also to psychiatric vulnerabilities. In Corr v IBC Vehicles Ltd [2005], an employee developed depression after a workplace injury and later committed suicide. The House of Lords held that the suicide was a development of the depression caused by negligence, rather than a novus actus interveniens, and the employer remained liable.

Josephine Higgins v Coleman & Motor Insurers’ Bureau of Ireland (2025)

 

The High Court of Ireland recently reaffirmed the eggshell skull principle in Josephine Higgins v Coleman & Motor Insurers’ Bureau of Ireland (2025).

The plaintiff, Ms. Higgins, was holding a parking space on the roadway when a van allegedly struck her left knee, causing a jolt. The defendant disputed the collision and denied liability. The court accepted medical evidence showing that Ms. Higgins suffered serious and ongoing consequences, including a radical personality change. She was diagnosed with a psychiatric adjustment disorder with mixed anxiety and depression, alongside moderate back injuries causing ongoing pain and sciatica.

O’Higgins J applied the eggshell skull principle, holding the defendant liable for the full extent of her injuries, even though they were more severe than might have been expected. The judgment emphasised:

“…due to some weakness or predisposition, a particular injured party suffers much more severe consequences from a relatively innocuous incident than might be expected… the tortfeasor takes his victim as he finds her.”

This reasoning echoes Clarke J’s observation in Walsh v Tipperary County Council [2011] IEHC 503:

“…if personal injury is a foreseeable consequence of whatever wrongdoing is concerned (say the negligent driving of a motor vehicle), then the fact that those injuries may, in the peculiar circumstances of the case, be much more severe than might have been expected, does not deprive the injured party from an entitlement to recover whatever may be appropriate for those injuries.”

Together, Walsh and Higgins confirm that psychiatric vulnerabilities are treated as part of the plaintiff’s condition, do not break the chain of causation, and do not limit recovery. They also demonstrate that the eggshell skull rule operates fully alongside the Personal Injuries Guidelines, ensuring plaintiffs with pre-existing vulnerabilities receive appropriate compensation for serious injuries.

Sykula v O’Reilly [2025] IEHC 638 – Multi-factorial Psychiatric Injuries

 

While Josephine Higgins involved a straightforward causal link between incident and injury, Sykula v O’Reilly [2025] illustrates how courts address cases where external factors also influence the plaintiff’s psychiatric condition.

In Sykula, the plaintiff suffered anxiety, depression, and PTSD following a road traffic accident. The High Court confirmed that, under the eggshell skull rule, the defendant must take the plaintiff as they find her, meaning pre-existing psychological vulnerability does not absolve the defendant from liability. The “but for” test established that, absent the accident, the plaintiff would not have developed these psychiatric conditions from January 2018 onwards.

However, the court recognised that the plaintiff’s mental health was influenced by numerous external factors not attributable to the accident, including homelessness, social isolation during COVID-19, stressful litigation, and rent arrears that led to emergency hostel accommodation. These factors exacerbated her psychiatric condition over six years. As a result, the court apportioned liability, attributing 50% of her psychiatric injury to the accident, with the remainder arising from other causes.

This demonstrates a key distinction: while the eggshell skull principle ensures liability for pre-existing vulnerabilities, courts will carefully consider multi-factorial influences when assessing damages over time.

Conclusion

 

The eggshell skull principle remains a cornerstone of personal injury law. It ensures that defendants are fully responsible for the consequences of their negligence, even where a plaintiff’s pre-existing vulnerabilities make the harm unusually severe. At the same time, cases like Sykula show that courts will carefully consider other contributing factors when assessing damages. Together, these cases highlight the balance courts strike between holding defendants accountable and ensuring damages accurately reflect the real-world impact of the injury. For Plaintiffs and defendants alike, the principle serves as a reminder that the law takes the plaintiff as it finds them – and that fairness in compensation must consider both the injury and the individual it affects.

If you would like guidance on a personal injury claim involving pre-existing conditions, or wish to understand how the eggshell skull principle may apply, use our Contact Us section and our team at Lacey Solicitors will be available to provide informed, practical advice.

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