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How Social Media Evidence Impacts Personal Injury Cases in Northern Ireland and the Republic of Ireland

Posted on by Ruaidhri Austin

 

Social media has become an integral part of modern life, with platforms such as Facebook and Instagram now used by around 70% of the population. This widespread usage carries significant implications for personal injury cases in Northern Ireland and the Republic of Ireland, where social media evidence is increasingly utilised in legal proceedings.

 

The Growing Importance of Social Media Evidence

 

Platforms like Facebook, Twitter, Instagram, Strava, and TikTok offer a wealth of information that can play a crucial role in personal injury cases. Posts, photos, videos, and comments are often examined to assess the credibility of a claimant’s allegations regarding their injuries and the impact on their lifestyle. Companies such as Netwatch are commonly engaged to scrutinise a claimant’s social media presence for evidence that might suggest their injuries have been exaggerated or fabricated. For instance, a claimant who asserts they have severe physical limitations might undermine their case by posting images or videos of themselves participating in activities that contradict their claims.

Solicitors have a duty to take positive steps to ensure that their clients appreciate at an early stage of the litigation the duties of Disclosure and Discovery.   Solicitors must also advise their clients not to destroy “documents” which might possibly have to be disclosed.  This duty extends to social media posts.

 

Admissibility of Social Media Evidence in Northern Ireland

 

In Northern Ireland, any party involved in an action must disclose to the other party any documents “which are or have been in their possession, custody, or power relating to matters in question in the case or matter.”

The test for discovery is set out in the Supreme Court Practice (1999 Volume 1 at 24/2/11), which is as follows:

“Not limited to documents which should be admissible in evidence nor to those which would prove or disprove any matter in question: any documents which, it is reasonable to suppose, contain information that may enable the party (applying for discovery) either to advance their own case or to damage that of their adversary, if it is a document that may reasonably lead to an inquiry which may have either of those two consequences, must be disclosed.”

A claim that documents are confidential does not, in itself, exclude them from the obligation of disclosure. The fact that material available on a publicly-accessible part of a social media account can be used as evidence seems uncontroversial.

As Lord Goff noted in Attorney General v Guardian Newspapers (No 2) [1990] AC 109 at 282:

“Once (information) has entered what is called the public domain, then as a general rule, the principle of confidentiality can have no application to it.”

Order 24, Rule 9 of the Rules of the Supreme Court (NI) 1980, which concerns an application for discovery of documents, states:

“On the hearing of an application for an order under rule 3, 7 and 8, the court, if satisfied that discovery is not necessary, or not necessary at that stage of the case or matter, may dismiss or, as the case may be, adjourn the application and shall in any case refuse to make an order if it is of the opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.”

There is no doubt that documents, if relevant—such as social media posts—are discoverable. Prima facie, they constitute information that is entitled to be used.

This was evidenced in the Northern Irish case of Martin and ors Gabriele v Giambrone P/A Giambrone & Law [2013] NIQB 48, where it was held that privacy settings on a Facebook post did not affect the admissibility of evidence and the evidence was admitted.

 

Challenges with Privacy Settings

 

The issue of privacy settings on social media accounts has not been extensively addressed by Irish courts. However, in Martin v Giambrone, it was noted that users share information on platforms like Facebook at their own risk, as there is no guarantee that posts intended for friends will remain private. Hordner J, in his judgment, stated:

“Anyone who uses Facebook does so at their peril. There is no guarantee that any comments posted to be viewed by friends will only be seen by those friends. Furthermore, it is difficult to see how information can remain confidential if a Facebook user shares it with all their friends and yet no control is placed on the further dissemination of that information by those friends. No evidence was provided as to how many friends the defendant had and what their relationship was with each of them. It was certainly not suggested that those friends were restricted in any way as to how they used any information given to them by the defendant. To avoid any confusion, I do not consider that any of the friends viewing that information would necessarily have concluded that the information was confidential and could not be disclosed. I have received no evidence as to why those friends were restricted in how they can use information received from the defendant and why they would have known this information was confidential or private.”

In the United States, courts have deliberated the balance between the probative value of social media evidence and privacy rights. For example, in Spoljaric v Savarese (2020), the court allowed the discovery of social media material related to physical activities but rejected requests for Fitbit and dating website data due to privacy concerns.

 

Case Dismissals Due to Social Media Evidence

 

Social media evidence has led to the dismissal of claims in some cases. We wrote previously about Fraud in Personal Injury cases in Ireland citing the case of Danagher v Glantine Inns [2010] IEHC 214, the plaintiff’s claim of severe injuries was undermined by their Facebook activity, which included playing sports and participating in a parachute event. Similarly, in Gervin v MIB [2017] IEHC 286, the plaintiff’s claim of being unable to attend the gym was contradicted by her Facebook posts.

“Her Facebook page was put to her in cross-examination, and I am satisfied from the entries, which she admitted had been posted by her, that she had returned to the gym by 2013 at least. Her suggestion that the evidence had been obtained in breach of her privacy settings is not credible, as at the relevant time, she did not have a privacy restriction on her Facebook account.”

Conclusion

 

Social media evidence plays a pivotal role in personal injury cases, offering insights into a claimant’s lifestyle and the veracity of their claims. Both claimants and insurers must navigate this digital landscape with caution, keeping in mind the potential legal consequences. As technology continues to evolve, the role of social media in legal proceedings is expected to grow, making it a crucial factor in personal injury litigation, along with the inevitable issues concerning admissibility, privacy, and authenticity.

Defence of Volenti Non Fit Injuria in Insurance Law: Applications in Workplace, Motor and Public Liability Claims.

Posted on by Lacey Solicitors

When it comes to insurance claims, particularly in personal injury cases, the defence of volenti non fit injuria plays a significant role. Derived from Latin, the term translates to “to a willing person, injury is not done.” This legal principle is often invoked by defendants in a variety of cases, including Employers Liability, Public Liability and Motor Liability claims.  But how does this defence work in practice? In this article, we will explore the concept of volenti non fit injuria and how it might be applied in different accident scenarios, using real cases from our office.

What is Volenti Non Fit Injuria?

 

Volenti non fit injuria is a defence used in personal injury cases to argue that the Plaintiff willingly accepted the risk of injury, thus negating any liability for the defendant. This defence essentially asserts that the person who suffers harm or injury did so voluntarily and with full knowledge of the risks involved.

In order for this defence to succeed, the defendant must prove that:

  1. The plaintiff had knowledge of the risk involved in the activity or situation.
  2. The plaintiff voluntarily consented to take that risk and in doing so waives any right of action against the defendant in respect of any breach of duty of care or injury arising therefrom.

If the answer to each is in the affirmative then the wrongfulness of the Defendant’s conduct is excused and claimant is precluded from recovering damages

Employers Liability Claims

 

Workplace accidents are a common area where the defence of volenti non fit injuria (the voluntary assumption of risk) may be raised. Employers and insurance companies might invoke this defence when they believe an employee has voluntarily assumed a risk associated with their work. For example, if an employee willingly engages in a hazardous activity without proper safety equipment or training, an employer may argue that the employee accepted the risks involved.

However, it is challenging to successfully apply the defence of volenti non fit injuria in workplace accidents. Employees have a statutory right to work in a safe environment, and employers are legally required to take steps to ensure the safety of their workforce. If an accident occurs due to employer negligence—such as failing to provide adequate training or safety measures—the defence is unlikely to succeed. In such cases, the injured employee can pursue compensation for their injuries.

A recent case we handled involved a construction company working on a residential project in Belfast. At the time, the house had only been completed to the first floor level, and no scaffolding or barriers had been installed. The plaintiff, an employee, was aware that the scaffolding and barriers had not yet arrived but was eager to continue the work. Without the employer’s knowledge or permission, he began working, leading to a fall from a height of 15 feet and serious injury.

In our defence, we argued volenti non fit injuria on the grounds that the plaintiff knowingly began work without the authority to do so and voluntarily accepted the risks involved in working in unsafe conditions, without proper safety measures.

Public Liability Claims

 

Volenti non fit injuria can also play a role in public liability claims, such as slip-and-fall incidents. For example, if someone knowingly participates in an activity with inherent risks, such as attending a sports event or engaging in a dangerous recreational activity, this defence may be invoked in the event of an accident.

We represented a security management company hired to provide security services at a live music event. One of the attendees, the plaintiff, decided to crowd surf during the performance and sustained a serious head injury after colliding with a metal barrier at the front of the venue. In our defence, we argued that the plaintiff voluntarily exposed herself to the risk of injury by engaging in the inherently dangerous activity of crowd surfing.

Motor Liability Claims

 

While the defence of volenti non fit injuria is less commonly applied in motor accident claims, it can still be relevant. For example, if a driver willingly engages in dangerous behaviour, such as racing or driving under the influence of alcohol, the defendant may argue that the claimant voluntarily assumed the risk of injury. To succeed, the defendant would need to demonstrate that the claimant knowingly participated in the risky conduct.

In a recent case, we were instructed by an insurer to act on behalf of their policyholder, who chose to drive a motor vehicle intoxicated and caused a collision where the Plaintiff was a passenger in his vehicle.  Both parties were friends and had consumed alcohol, and despite being intoxicated, the defendant chose to drive all parties home. The plaintiff accepted a ride from the defendant, fully aware that the driver was under the influence. We raised volenti non fit injuria in our defence, arguing that the plaintiff voluntarily assumed the risk of injury by accepting a lift from an intoxicated driver.

Key Considerations of Volenti Non Fit Injuria for Insurance Law Firms

 

For insurance law firms in Northern Ireland, understanding the nuances of volenti non fit injuria is essential when defending or advising clients in personal injury cases. Here are some key factors to consider:

  1. Risk Awareness and Consent: The claimant must have known and voluntarily accepted the risk involved. This is often difficult to prove, especially in cases where the individual was not fully aware of the potential danger or was under duress.

  2. Employer Duty of Care: In workplace accidents, the employer’s responsibility to provide a safe working environment is paramount. Volenti non fit injuria is unlikely to succeed if the employer was negligent in fulfilling this duty.

  3. Public Liability Considerations: In public liability claims, defendants may attempt to invoke volenti if the claimant knowingly assumed the risk. However, if negligence is present—such as failure to provide adequate warnings or safety measures—the defence is less likely to succeed.

  4. Motor Liability  Defences: While volenti can be raised in motor accident claims, it is typically unsuccessful unless the claimant was engaging in reckless behaviour that directly contributed to the injuries.

 

Conclusion

 

The defence of volenti non fit injuria is an important legal concept in personal injury claims, and its application can vary depending on the circumstances surrounding an accident. Whether the case involves a workplace accident, a public liability claim, or a motor liability claim, understanding when and how this defence can be invoked is crucial for both plaintiffs and defendants. Insurance law firms in Ireland must carefully assess the facts of each case and consider all elements of risk, consent, and negligence when determining the viability of this defence.

For insurance companies, working with experienced legal counsel can ensure that claims are appropriately defended, while claimants must be aware of their rights and the challenges of countering this defence. Legal professionals play a key role in navigating the complexities of volenti non fit injuria and ensuring fair outcomes for all parties involved.

Understanding Limitation Periods for Personal Injury Claims in Ireland: Impact of Estoppel and Key Case Law

Posted on by Lacey Solicitors

Personal injury claims in Ireland are subject to strict limitation periods, governed by the Civil Liabilities and Courts Act 2004 and the Statute of Limitations Act 1957. If you have suffered a personal injury due to someone else’s negligence, understanding these limitation periods is important. Failing to initiate a claim within the prescribed time can result in your case being dismissed. However, as illustrated in Tsiu v. Campbell Catering Ltd T/A Aramark Ireland [2022] IEHC 391, the application of the statute of limitations can be influenced by the conduct of the defendant, especially when the principle of estoppel is applied.

 

This article discusses the importance of limitation periods for personal injury claims in Ireland, the role of estoppel in preventing defendants from relying on the statute of limitations, and key case law such as Tsiu v. Aramark Ireland that have shaped this area of personal injury law.

 

What Are Limitation Periods for Personal Injury Claims in Ireland?

 

In Ireland, the limitation period for personal injury claims is governed by the Statute of Limitations Act 1957. Generally, you must file a personal injury claim within two years from the date of the accident or the date you become aware of the injury and the person responsible. This is known as the date of knowledge rule. If you fail to file a claim within this period, your claim may be dismissed, and you could lose the opportunity to claim compensation for your injuries.

The Civil Liabilities and Courts Act 2004 also requires that a claimant notify the responsible party of their intention to pursue a claim within one month of the accident. If you do not meet this requirement, it could jeopardise your ability to recover legal costs or even prevent the case from proceeding.

 

Key Dates in the Personal Injury Claims Process

 

When calculating the limitation period, it’s important to understand the critical dates involved in the personal injury claims process:

  • Date of the Accident or Date of Knowledge: This is when the injury occurred or when the claimant became aware of the injury and the person responsible for it.
  • Expiration of the Limitation Period: The two-year period begins from the date of the accident or the date you became aware of the injury.
  • Form A Submission to PIAB: The date you submit your claim to the Personal Injuries Assessment Board (PIAB).
  • Acknowledgment and Authorisation from PIAB: Once PIAB acknowledges your claim, it may issue authorisation to proceed to court if necessary.
  • Issuing Court Proceedings: You have six months from PIAB’s authorisation to issue court proceedings.
  • Balance of the Two-Year Period: The remaining time left in the two-year limitation period for filing court proceedings.

 

What Is Estoppel and How Does It Affect Limitation Periods?

 

Estoppel is a legal principle that prevents a party from going back on a representation or assumption that has misled another party into acting to their detriment. In personal injury claims, estoppel may prevent a defendant from relying on the statute of limitations defence if their conduct misled the claimant into believing the time limit would not be enforced.

The principle of estoppel was clearly illustrated in the case of Tsiu v. Campbell Catering Ltd T/A Aramark Ireland, where the defendant’s conduct—including admitting liability and engaging in settlement discussions—created a reasonable expectation in the plaintiff that the limitation period would not be raised. The defendant later attempted to use the statute of limitations as a defence despite having communicated in a way that misled the claimant.

 

Key Case Law: Tsiu v. Campbell Catering Ltd T/A Aramark Ireland

 

In Tsiu v. Campbell Catering Ltd T/A Aramark Ireland, the plaintiff was injured in a work-related accident on 4 December 2013. The defendant’s insurer admitted liability in August 2015 and initiated settlement discussions. However, the claimant’s Form A to PIAB was submitted five days after the statutory deadline. Despite this, the insurer continued discussions without setting a deadline for concluding negotiations.

Later, the defendant attempted to raise the statute of limitations defence, arguing that the claim was time-barred. The key question was whether the insurer’s conduct could prevent them from relying on the statute of limitations. The High Court ruled in favour of the plaintiff, finding that the defendant was estopped from raising the limitation defence due to their conduct.

 

The Role of Murphy v. Grealish in Personal Injury Claims

 

The case of Murphy v. Grealish [2009] IESC 9 established the legal precedent that defendants could be estopped from raising the statute of limitations if their conduct misled the claimant into believing that the claim would not be time-barred. In this case, the defendant’s insurer had admitted liability and engaged in settlement negotiations even after the limitation period had expired. The Supreme Court found that the insurer’s actions had misled the plaintiff into believing the limitation period was no longer an issue.

In Tsiu v. Aramark Ireland, the High Court applied the same principles from Murphy v. Grealish. The court found that the defendant’s conduct—admitting liability, engaging in settlement discussions, and requesting medical reports—had created an expectation that the limitation period would not be enforced. As a result, the defendant was estopped from raising the statute of limitations defence.

 

How Can Estoppel Impact Your Personal Injury Claim?

 

Estoppel can be a powerful tool for claimants if the defendant’s conduct has misled them into believing that the statute of limitations would not apply. If you have been negotiating with an insurer or defendant who has admitted liability or engaged in settlement discussions, and the statute of limitations is about to expire, estoppel may prevent them from using the limitation period as a defence.

If you are in a similar situation, it is important to seek legal advice promptly. An experienced solicitor can assess whether estoppel applies in your case and advise on how to proceed.

 

Conclusion: Defendants Can Be Estopped from Relying on the Statute of Limitations

 

The case of Tsiu v. Campbell Catering Ltd T/A Aramark Ireland demonstrates that defendants can be estopped from raising the statute of limitations defence if their conduct misleads the claimant into believing that the claim would not be barred by the time limit. This principle of estoppel, supported by previous case law such as Murphy v. Grealish, highlights the importance of careful conduct during settlement negotiations and communications in personal injury claims.

For Claimants: It is vital to act quickly to ensure your personal injury claim is initiated within the statutory time limits. However, you should also be aware that, in some cases, the defendant’s actions may prevent them from raising the statute of limitations as a defence.

For Defendants and Insurers: Ensure that your actions do not create a false impression regarding the statute of limitations. If you admit liability or engage in settlement discussions, do so in a way that does not mislead the claimant into believing the limitation period is not relevant.

If you have been involved in an accident in Ireland and are considering making a personal injury claim, contact a solicitor as soon as possible to discuss your case and ensure that any potential issues regarding limitation periods are addressed.

How to Stay Safe During Dangerous Weather Conditions: A Guide for Employers and Employees

Posted on by Lacey Solicitors

As winter sets in, Ireland experiences colder temperatures, shorter daylight hours, and an increase in dangerous weather conditions like snow, ice, and heavy rain. These conditions can significantly increase the risk of accidents, especially slips, trips, and falls, which are common during the autumn and winter months. With many employees commuting in the dark and the weather worsening, it’s important to take proactive steps to ensure safety in the workplace.

 

In this article, we will provide guidance on how both employers and employees can stay safe during dangerous weather conditions and reduce the risk of accidents in the workplace.

What Should Employers Do to Prevent Accidents?

 

As the weather deteriorates, it’s essential that employers take appropriate steps to reduce the risks posed by icy conditions and hazardous outdoor environments. Here are some key actions your employer should take to protect their workforce:

  1. Grit Walkways and Entrances:
    If ice or snow is forecast, it is essential for employers to ensure that all walkways, pedestrian entrances, and paths are properly gritted. Grit (or rock salt) helps prevent the formation of ice, but it takes time to work, so the best practice is to grit the evening before the temperatures are expected to dip below freezing and again in the morning before employees arrive. Regular gritting throughout the day may also be necessary during ongoing weather conditions.

  2. Winter Weather Risk Assessments:
    A responsible employer should conduct a thorough risk assessment to identify any potential hazards that may arise due to dangerous weather conditions. These might include:

    • Paths under trees that are at risk of becoming slippery from falling leaves.
    • Blocked gutters that may cause excess water to spill onto pathways.
    • Areas that are perpetually shaded, leading to the build-up of moss, algae, or ice.
    • Poorly lit areas where it may be difficult to spot potential hazards like ice or debris.

  3. Ensure Proper Drainage:
    Ensure that drainage grids are free from obstructions to allow for the smooth flow of water. This will prevent water from pooling on walkways and causing further slip hazards.

  4. Clear Outdoor Paths and Walkways Regularly:
    Regularly clear paths of fallen leaves, moss, and other debris. Employers should also prune back overhanging trees or shrubs that may obstruct walkways or contribute to dangerous conditions.

  5. Non-slip Mats and Wet Floor Signage:
    Provide non-slip mats at entrances to buildings to help absorb moisture and prevent slips. Additionally, ensure that wet floor signs are clearly visible in areas that are likely to be slippery due to incoming weather conditions.

  6. Communicate Policies to Employees:
    Make sure all employees are aware of the firm’s winter or dangerous weather policy, including the steps to take when encountering hazardous conditions. Encourage them to report any hazards they notice on the premises.

 

What Can Employees Do to Stay Safe?

 

While employers have a responsibility to ensure workplace safety, employees also play a crucial role in maintaining a safe working environment during dangerous weather. Read our article on the steps and employee can take:

  1. Report Hazards Promptly:
    If you notice a potential hazard, such as a build-up of leaves, blocked drainage, or slippery surfaces, report it to your employer immediately. Prevention is always better than dealing with an injury.

  2. Wear Appropriate Footwear:
    When working outdoors in dangerous weather conditions, ensure you are wearing sturdy, non-slip footwear. This is one of the simplest ways to avoid slipping or falling.

  3. Familiarise Yourself with Company Policies:
    Make sure you understand your company’s winter or dangerous weather and risk assessment policies. Know what to do in case of an emergency or hazardous conditions and follow the safety procedures laid out by your employer.

  4. Be Mindful of Your Surroundings:
    Always be aware of any hazards on your way into and out of the workplace. Take extra caution when walking in poorly lit areas, and avoid rushing if conditions are slippery.

 

Additional Tips for Staying Safe in Dangerous Weather

 

In addition to workplace safety, it’s also important to take steps to stay safe in your personal life, especially if you need to travel during extreme weather conditions. Here’s how you can protect yourself:

  1. Avoid Unnecessary Travel:
    If dangerous weather is forecast, the first and most important rule is to ask yourself: “Do I really need to go out?” Driving in heavy rain, snow, or high winds can be dangerous, especially with fallen debris and flooded roads. Only travel if absolutely necessary, and ensure you check local weather reports for any disruptions.

  2. Driving in Dangerous Weather:
    If you must drive, ensure you are prepared:

    • Keep a firm grip on the wheel, especially when driving over bridges or in areas with little shelter from the wind.
    • Avoid overtaking other vehicles when wind conditions are high.
    • Slow down and drive cautiously when visibility is poor or when there is standing water on the road.
    • Always carry essential supplies such as food, water, blankets, and a fully charged phone in case of emergency.

  3. Stay Indoors During Storms:
    During extreme weather like storms, stay inside as much as possible. Avoid walking near buildings, trees, or fences that could collapse due to strong winds or flying debris. Listen for weather updates on the radio and TV to stay informed about any safety risks.

  4. Prepare for Power Cuts:
    In case of power loss, turn off non-essential appliances but leave a light on to indicate when power has been restored. Ensure you have warm clothing, a flashlight, and any necessary supplies ready in case you need them.

  5. Take a note of important numbers:

The Health and Safety Executive in Northern Ireland has a list of emergency contact numbers on their website that you should save in case you need them.

 

 

What to Do After a Storm

 

Once a storm has passed, be sure to check for any damage to your home, workplace, or property. Here are some key actions to take:

  • Contact your insurance company to report damage as soon as possible.
  • Avoid walking around exposed electrical lines or other hazards.
  • If necessary, arrange for emergency repairs to prevent further damage.
  • Keep receipts for any repairs or emergency services as they may be needed for your claim.

 

Can You Claim Compensation for an Accident?

 

If you suffer an accident at work due to dangerous weather conditions, you may be entitled to compensation, especially if your employer failed to implement necessary safety measures or carry out a proper risk assessment. If you’ve experienced an injury due to slipping on an icy surface or other weather-related hazard, contact a personal injury lawyer to discuss your options. Our team at Lacey Solicitors is here to provide expert advice on your case.

Call our Belfast office on 028 9089 6540 or complete our online contact form to arrange a consultation. Our friendly team is here to guide you through every step of the claims process and help you secure the compensation you’re entitled to.

Understanding Diminution in Car Accident Claims: Restitution Ad Integrum & Insights from Payton v. Brooks

Posted on by Ruaidhri Austin

For motor insurers and Plaintiff’s alike, diminution in value of a motor vehicle following a road traffic collision is a fairly common issue.  When a car is involved in an accident, it may suffer both physical damage and a reduction in its value. This can lead to disagreement over how much compensation should be paid. The key principle that arises in such cases is restitution ad integrum, a Latin phrase that refers to restoring the Plaintiff to their original position before the damage occurred.

What Is Diminution in Value After a Crash?

 

Diminution in value is the reduction in a vehicle’s market value after an accident, even if the car is repaired to its pre-accident condition. This can be particularly significant when a vehicle, once repaired, is worth less than it was before the accident due to its accident history. The Diminution will occur at the time the accident damage but often one won’t feel the loss until the vehicle is sold.  How can one properly assess and compensate for this apparent decrease in value that wouldn’t be felt until the vehicle is sold?  While the damage might be physically repaired to a high standard, the vehicle’s resale value may never fully recover.

As noted in Coles v Hetherton [2013] EWCA Civ 1704, the cost of repairs and depreciation are both evidentiary mechanisms to quantify a single head of loss—diminution in value.

Restitution Ad Integrum and its Application in Car Accident Claims

 

The principle of restitution ad integrum is central to car accident claims, particularly in cases involving diminution in value. The phrase translates to “restoration to the original condition,” meaning that the goal is to return the injured party to the position they were in before the damage, as much as possible. In the context of car accidents, this could involve either repairing the vehicle or compensating the owner for the loss in market value due to the accident.

However, achieving restitution ad integrum is not always an exact science. The principle assumes that the car’s pre-accident condition can be restored or compensated for. But in reality, various factors complicate this ideal. A key example can be found in older vehicles or those with high mileage.

Case Law: Payton v. Brooks (1974) and Coles v Heatherton (2013)

 

Payton –v– Brooks (1974) was heard in the Court of Appeal, and it set out that a claim can be brought for Diminution due to the need for a vehicle to have repair work done after an accident.

The logic being that if the overall cost of the vehicle repairs does not cover the financial loss to the owner, according to Payton v Brooks,  ‘there is no reason why the plaintiff should be deprived of recovery under [diminution] also.’”

On a similar note, Coles –v– Hetherton (2013) recognised that financial loss to a vehicle owner is realised upon damage to the vehicle. This loss is not just from the cost of the repairs, it is Diminution.

Covering the price of repairs to reinstate the vehicle to its original condition is merely a contribution towards the Diminution. The Courts could award a sum of compensation exceeding the cost of the vehicle repairs if it deemed to be justified.

However, it also established that each case should be assessed individually, considering various factors such as the car’s age, mileage, and condition before the accident.

A Case-by-Case Assessment of Restitution Ad Integrum

 

Insurers have seen an increase in the number of Diminution claims in NI and ROI.  Many Plaintiffs would argue that it is ‘inevitable’ that the value of a vehicle would depreciate because of a road traffic accident.  Insurers and Defendant Lawyers will often be referred to a standard 5%-20% deduction as a result of a road traffic collision.  In ROI a figure is often quoted of 10% of the total cost of repairs.

For Insurers, it’s important to note that the process of determining diminution in value is case-specific. The assessment of restitution ad integrum is not a one-size-fits-all solution.   Insurers must evaluate each situation individually to ensure that the Plaintiff is properly compensated and not over-compensated.

Our office was recently instructed by one of our Irish Insurers to advise on a depreciation claim where their in-house assessors opined that the value of the damaged vehicle would not be affected due to minimal damage and the fact that all parts fitted were bolt on.  They advised that Depreciation would usually only be considered when structural or semi structural repairs are being carried out and the file was passed to us to defend the proceedings once issued.

This was, we explained, not quite the correct approach and we took immediate steps to advise on a fair settlement of the case to avoid any ensuing legal costs.

Justin McCauley of Emerald Automotive Assessors is a qualified Motor Engineer having achieved his qualifications from the IAEA and IMI  and has worked in the insurance industry for 16 years.

We approached him for the purpose of this article and he had this to say;

“An often quoted argument is that “if two vehicles have similar mileage, age, model, make etc and are otherwise identical save that one was involved in a road traffic collision, any potential buyer would opt for the one without the adverse history.  Notwithstanding that high quality repairs were carried out.”

This is not strictly true.  

Of course, now more than ever the used car market is highly competitive, where buyers are often hesitant to purchase a car with a history of accidents, even if fully repaired, leading to a larger price difference between pre-accident and post-repair values. 

There is undoubtedly an increase in depreciation claims where many modern vehicles have sophisticated technology, and so Plaintiffs will argue that even minor accidents can sometimes require extensive repairs, impacting the perceived value of the car. 

A number of factors however can have an impact on the amount that a vehicle will have been reduced by.  

      • type of vehicle,
      • its age,
      • mileage,
      • who repaired it and did they adhere to manufacturer methods
      • has repairs invalidated the vehicle’s warranty
      • What was the quality of repairs post repair 
      • pre-accident condition,
      • the severity of damage sustained or
      • any other special attributes and qualities

There is no one size fits all.  This growing trend of 10% of the repair costs is incorrect.  Similarly, it is incorrect to say that it is always 2.5% -15%.  It is incorrect to say that a vehicle over four years old will not qualify.  It is fact specific and input from a qualified Motor Assessor is key.

Expert Evidence in Diminution Claims

 

Insurers should understand that the application of restitution ad integrum in car accident claims is not straightforward and varies based on the specifics of the case. Undoubtedly, as demonstrated in Payton v. Brooks, a Plaintiff should be compensated for any diminution in the value of their vehicle due to an accident, but the existence and extent of diminution is not straightforward.

To navigate these complex issues, it is vital to appoint a suitably qualified motor assessor to assess any diminution claim.

The motor assessor can consider the condition of the vehicle and the extent of the damage having regard to all the necessary factors.  By understanding the intricacies of the law and the unique circumstances of the case, insurers can properly assess any claim for diminution and ensure fair settlement as early as possible.

 

Case Study – Ciara’s £6,000 Settlement for her Allergic Reaction Work Accident Claim in Belfast

Posted on by Lacey Solicitors

Case Study: Successful Work Accident Claim – Ciara’s £6,000 Settlement

Client: Ciara
Settlement: £6,000
Location: Belfast
Case Type: Work Accident Injury Claim

Overview: Ciara’s Work Accident and Injury Claim

Ciara, who suffers from a severe nut allergy, was employed at a popular Belfast hotel. On the day of her accident, a number of new chefs from across the UK and Ireland were testing new menu items. Among the dishes being tested was a chocolate-based dessert containing nuts, which Ciara was unaware of.

Although Ciara did not consume or touch the dessert, she was in close proximity to the kitchen where the dish was being prepared. Within minutes, Ciara began experiencing difficulty breathing and developed a rash, signs of a severe allergic reaction. Upon realizing that the dessert contained nuts, she immediately used her Epipen and was driven to the Royal Victoria Hospital in Belfast for urgent treatment.

Why Ciara Contacted Lacey Solicitors

Feeling frustrated and concerned about her safety at work, Ciara sought legal advice from Lacey Solicitors’ personal injury team. She was given a free, no-obligation consultation with Ruaidhri Austin, Partner at Lacey Solicitors.

After discussing her case, Ciara decided to pursue a personal injury claim against her employer for failing to ensure her safety in the workplace.   Lacey Solicitors were impressed at the steps taken by Ciara following the accident at work.  Ruaidhri sent a formal letter of claim to the hotel’s management and arranged for medical reports from an emergency medicine consultant from Royal Victoria Hospital in Belfast to support Ciara’s case.

The Employer Denies Liability

Ciara’s employer quickly denied any liability, arguing that they had taken all reasonable steps to ensure her safety. Their Insurance company claimed Ciara’s allergic reaction was not caused by the menu testing event, denying the presence of any nuts in the kitchen that day. The employer also suggested that Ciara may have encountered nuts elsewhere prior to her shift.

Lacey Solicitors rejected these claims on Ciara’s behalf and immediately issued court proceedings against her employer claiming that they were in breach of the Health and Safety at Work Order 1978, the Control of Substances Hazardous to Health Regulations (NI) 2003 and the Management of Health and Safety at Work regulations (NI) 2000.

Settlement Negotiations and Legal Strategy

The insurance company on behalf of Ciara’s employers appointed Solicitors to Defend the case. They maintained that the injury was minimal lasting no more than 30 minutes and that the matter should be dismissed by the court. Furthermore, they warned Ciara that if the case proceeded, she could be ordered to pay their legal fees.

Lacey Solicitors firmly disagreed with the their position, advising Ciara that she had a strong case and should continue with the legal process.

Ciara’s employers solicitors eventually agreed to enter into settlement discussions. Although they initially proposed a minimal compensation amount, arguing that Ciara’s injury lasted only about 30 minutes, Lacey Solicitors successfully negotiated a settlement of £6,000 for Ciara’s injury, as well as her legal fees.  Ciara received her compensation four months after we issued legal proceedings.

Why Choose Lacey Solicitors for Your Work Accident Claim

At Lacey Solicitors, with offices in Belfast and Dublin, we have a reputation as experts in insurance law and are committed to ensuring you receive fair compensation for injuries sustained in the workplace. Our expert team offers tailored legal advice, guidance, and representation to support you throughout the claims process.

Contact Lacey Solicitors in Belfast Today

If you’ve been injured at work, you can trust Lacey Solicitors to guide you through the claims process. We offer a free initial consultation with one of our expert solicitors who will help you understand your legal options.

Get in touch today using our online form to speak with a trusted accident at work solicitor in Belfast. We’re committed to providing you with expert legal advice and representation to help you get the compensation you deserve.

Road Traffic Accidents in Belfast: Your Obligations

Posted on by Maria Adams

Do I Need to Report a Road Traffic Accident? | Road Traffic Accident Solicitors in Belfast

 

If you’ve been involved in a road traffic accident in Belfast, it’s important to understand your legal obligations, including when and how to report the incident. As specialist road traffic accident solicitors in Belfast, we’re here to guide you through the process, ensuring that you comply with the law while protecting your rights.

 

When Do You Need to Report an Accident?

 

You must report a road traffic accident if damage is caused to anything other than your vehicle or its contents. This includes other vehicles, property (such as walls, fences, or street furniture like lamp posts or street signs), or injuries sustained by anyone other than the driver. In legal terms, an animal refers to any horse, cattle, ass, mule, sheep, pig, goat, or dog involved in the accident.

 

Non-Reportable Accidents:

The Police Service of Northern Ireland guidance is that if only the vehicle involved is damaged, or the injury is limited to the driver or any animal carried inside or on the vehicle, you may not be required to report the accident.

 

What Are My Legal Obligations?

 

After a road traffic accident, there are several legal duties you must comply with. Failure to do so could lead to prosecution. Here’s what you need to do:

 

  1. Stop Your Vehicle and Stay at the Scene
    Always stop your vehicle and remain at the scene of the accident for a reasonable period. This will allow you to exchange details with the other party involved and ensure the safety of all individuals.
  2. Report the Accident
    You must report the accident within a reasonable time to the police (via 101) or directly to the other party involved if they are present. Your solicitor in Belfast can assist you in understanding what qualifies as a reasonable time.
  3. Exchange Details with the Other Party
    Regardless of fault, you must exchange the following details with the other party involved:

    • Name
    • Address
    • Vehicle registration number
    • Vehicle ownership details (if you’re not the owner)

    It’s also advisable to have a copy of your insurance certificate and be ready to provide the details of your insurer and policy number. Keeping this information handy will make the process easier if you ever need to file a claim.

 

What Should I Do If I’m Involved in a Road Traffic Accident?

 

It’s important to act quickly after a road traffic accident to protect your legal position and ensure that all legal requirements are met:

 

Notify Your Insurer:
Most insurance policies will generally require you to report any accident, regardless of fault or whether you plan to make a claim for damages or injuries. It’s essential to notify them as soon as possible. You might also want to take photographs of the scene for your insurer—provided it’s safe to do so.

 

Do Not Move Your Vehicle 
Unless the vehicle is causing a traffic hazard or it’s unsafe to leave it where it is, avoid moving your vehicle before the police arrive. This helps ensure an accurate record of the scene and avoids further risk.

 

The Role of the Police at the Scene

 

The police recorded 4977 road traffic accidents in 2023/2024 according to their latest statistics.  PSNI will attend the scene of a road traffic accident when there is an injury or risk to other road users. Once on-site, they will:

  • Ensure the safety of all individuals involved
  • Record the details of the parties involved, including passengers
  • Investigate the cause of the accident
  • Take measurements of the scene and produce a sketch if needed
  • Conduct a Preliminary Breath Test (PBT) to check for alcohol impairment
  • Assist with vehicle recovery if required

If you’re asked to present your driving licence or proof of insurance, you must do so. If you don’t have these documents, the police may issue a ‘Requirement to Produce’ form, which you must comply with within seven days. Failing to do so may result in prosecution.

 

What Happens After the Police Investigation?

 

The police will conduct a thorough investigation into the circumstances of the collision. If someone is found to have committed a driving offence, the case may be forwarded to the Public Prosecution Service. They will decide whether to proceed with a criminal prosecution, offer an alternative outcome, or take no further action.

The police report will not provide a definitive view on blame or liability, which is why it’s important to consult a road traffic accident solicitor such as Lacey Solicitors Belfast. We can help you obtain the Collision Report Form (CRF), which is often vital for your personal injury claim or civil case.

 

General Advice After a Road Traffic Accident

 

  • Stay Calm and Comply with the Law:
    It’s natural to feel shaken after an accident, but remaining calm and following your legal obligations will help protect your interests.
  • ‘Hit and Run’ Situations:
    If another vehicle leaves the scene, try to capture the registration number as quickly as possible. This will help the police trace the driver and hold them accountable.
  • Seek Medical Attention:
    Even in minor accidents, shock and injury symptoms may not appear immediately. It’s always advisable to seek medical attention if you feel unwell or notice any injuries later. Your health is the priority.
  • Consult a Road Traffic Accident Solicitor:
    If you’ve been injured or experienced damage to your vehicle, you may be entitled to compensation. Our experienced solicitors in Belfast can help you navigate the claims process, ensuring you receive fair compensation for your injuries and losses.

 

At Lacey Solicitors, we have decades of experience in injury and insurance matters, acting for both insurance companies in Ireland and injured individuals. As experts in road traffic accident claims in Belfast, we can provide you with the legal support you need. If you’ve been involved in a road traffic accident, contact our team of solicitors using our online form today for a consultation.

Life is full of dangers and judicial prose…

Posted on by Damian McGeady (Partner)

A Sideways Glance to the Court of Appeal decision in

 

Kandaurova

V

 Circle K Energy Group Ltd

 

Brilliant.

The opening to Noonan J’s Court of Appeal judgment this week in the case of Kandaurova v Cirkle K Energy Group Ltd. was brilliantly effective, reminiscent of the vivid staccato style often associated with Lord Denning in his pomp. To Denning, the writing of judgments was an art form.  And the beginning mattered:

I try to make my judgments live … I start my judgment, as it were, with a prologue – as the chorus does in one of Shakespeare’s plays – to introduce the story.

Professor James Raymond, former Professor of Rhetoric at the University of Alabama, maintained that the first page of a judgment is “prime real estate.” In a well-constructed judgment, “the front page says it all.”

 

Danger here

In Kandaurova, Noonan J opened as follows;

Life is full of dangers which may cause injury if not avoided.  Small children develop by encountering and learning to avoid things that can be fallen off, bumped into, tripped over or knocked down.  In the common law of occupiers’ liability, ordinary everyday dangers are described as “usual” and as such, do not attract liability

The reader is given a simple and direct introduction to the case. The direction of the wind is clear. People can be injured due to danger, but where it is a usual or common danger, there may not be a liability. In this case, a lady tripped on a kerb. It was not defective. The Court of Appeal held that she could not recover damages from the Occupier.

 

The Bluebell opening

There are other fine examples of opening paragraphs in Personal Injury cases. Denning’s ‘Bluebell opening’ is perhaps the most celebrated;

It happened on the 19th April, 1964. It was bluebell time in Kent, Mr. and Mrs. Hinz had been married some 10 years, and they had four children, all aged 9 and under. The youngest was one. Mrs. Minz was a remarkable woman. In addition to her own four, she was foster-mother to four other children. To add to it, she was two months pregnant with her fifth child.

On this day they drove out in a Bedford Dormobile van from Tonbridge to Canvey Island. They took all eight children with them. As they were coming back they turned into a lay by at Thurnham to have a picnic tea. The husband, Mr. Hinz, was at the back of the Dormobile making the tea. Mrs. Hinz had taken Stephanie, her third child, aged 3, across the road to pick bluebells on the opposite side. There came along a Jaguar car driven by Mr. Berry, out of control. A tyre had burst. The Jaguar rushed into this layby and crashed into Mr. Hinz and the children. Mr. Hinz was frightfully injured and died a little later. Nearly all the children were hurt. Blood was streaming from their heads. Mrs. Hinz, hearing the crash, turned round and saw this disaster. She ran across the road and did all she could. Her husband was beyond recall. But the children recovered.

 

Home Run

This blog has previously written of the Irish case of Kane v Kennedy and Budd J’s tremendously evocative :

The news of the death of Joe DiMaggio came while I was writing this judgment. His record streak in 1941, when he got a hit in fifty-six consecutive games, still stands. His grace at the plate and his defensive qualities at centre field, his leadership of the New York Yankees to victory in nine of the ten World Series in which he led them, and above all his gentlemanly conduct made him a legend in his own lifetime. I wonder what he would have made of the problems with which I have been confronted in resolving the conflicts of evidence presented by what followed the strike by Alice Dunne during the game of rounders played in the sports hall of a convent school in Glasnevin on the morning of Tuesday 21st May 1996.

 

Life and Death

One of the first Constitutional cases this reader encountered was the X Case (1992). This form Denham J:

This application for an injunction raises issues of the utmost seriousness affecting a girl of 14 years of age and her family. It concerns matters of life and death, and touches on the deepest aspects of human experience and the moral and legal norms of our Justice.

 

Short and Sweet

Lord Hoffmann’s opening to his judgment in the case Investors Compensation Scheme Ltd v West Bromwich Building Society could not have been in plainer language;

My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Lloyd of Berwick. I agree with it, and for the reasons which he has given, I would allow the appeal.

 

Signal of Intent

Lord Wilberforce in Anns v Merton London Borough Council got straight to the point with:

In my opinion the time has come when we should say that the law ought to recognise our responsibility going beyond the present cases, a duty to behave conscientiously, responsibly and with humanity.

 

Lunar Law

For the property lawyers out there, what about I leave you with this from our Supreme Court and Higgins CJ in Vone Securities Ltd v. Cooke:

As stated by Mr. Justice Costello in his Judgment, at common law the ordinary primary meaning of month, when used in instruments such as leases, was and is lunar month. This meaning is taken to be intended by the parties to any such instrument unless that instrument read as a whole, or the surrounding contemporaneous circumstances, show that the other, or secondary meaning, of calendar month, was, in fact, intended. It will, no doubt, surprise many people to learn that a rule as archaic as this surely is and so far removed from the needs and uses of modern society should still be part of our law. Even in the days of Charles Dickens, the rule was probably sufficiently out of date to justify Mr. Bumble’s description of the law. Today, its continued existence as a rule of the common law is opposed to all common sense and indicates how much remains to be done by way of reform to bring the common law up to date.

You learn something new every day! Or should that be every 1/29th of a lunar month (Approx. Maths is not my thing)

Case Study – Excessive Credit Hire Rates halved in Ireland with Basic Hire Rate Reports.

Posted on by Ruaidhri Austin

Recent Success in Challenging Excessive Credit Hire Rates in Ireland

 

Last month, our firm reported recent success with a  successful outcome at Letterkenny Courthouse, where the Court agreed with our arguments that the rate charged by a Credit Hire Organisation was excessive. We’re pleased to share another win for our Irish insurers in contesting inflated credit hire charges.

 

Case Summary

 

The Claimant was involved in a road traffic accident with the Defendant, and liability was accepted by the Defendant’s insurer. After the accident, the Claimant entered into a credit hire agreement with an Accident Management Company (AMC), which provided a replacement vehicle on a credit hire basis. The Claimant’s original vehicle was written off, and payment was made by our instructing insurers for the pre-accident value (PAV) of the vehicle.

Once the PAV had been settled, the credit hire period ended, and the Claimant’s representatives submitted an invoice to our instructing insurer for payment. The total amount claimed for the hire of the replacement vehicle over 76 days was £26,343.46 (STG). The Credit Hire Organisation later offered to accept £20,000 (STG) to settle the matter, and avoid Circuit Court costs in Dublin.

 

Initial Assessment by Lacey Solicitors 

 

Our instructing insurers sought a preliminary opinion from Ruaidhrí Austin, Partner at Lacey Solicitors, given his dual qualifications and extensive experience in both Northern Ireland and the Republic of Ireland in handling credit hire claims. They specifically asked whether the reduced figure of £20,000 should be accepted and had two primary concerns:

  1. Mitigation of Losses: Could it be argued that the Claimant failed to mitigate their losses by not using their comprehensive insurance policy? Under  34(2)(b) of the Civil Liability Act 1961. Claimants in Ireland have a statutory duty to mitigate their losses. While this argument is common in credit hire cases, we advised that at this early stage of the proceedings, it would be best to focus on other arguments.
  2. Reasonableness of the Hire Rate: Was the daily rate charged for a replacement Range Rover reasonable? Given the specifics of the case, the hire period was appropriate, and the replacement vehicle was ‘like for like’. However, the insurer rightly questioned the reasonableness of the hire rate which seemed excessive.

 

Challenging the Credit Hire Rate

 

We outlined that the burden of proof lies in these cases lies with the Defendant to demonstrate that there was a more reasonable rate available.   Prima facie, the Plaintiff is entitled to the rate claimed.  It is for the Defendant to demonstrate a suitable alternative rate.  To support this, our office commissioned a Basic Hire Rate (BHR) report from ‘BHR Assist’ to challenge the excessive charges.

The BHR report revealed that a comparable replacement vehicle could have been hired from a car hire company located just 10 miles from the Claimant’s home for a total of £10,876.55, a significant difference from the £26,343.46 claimed.

 

Settlement and Conclusion

 

We advised that our instructing insurers should offer £12,500.00 (STG) in settlement, which included the £10,876.55 for hire, plus additional costs for storage and recovery. The insurers successfully negotiated a settlement at this amount, avoiding formal court proceedings and saving substantial legal costs in the process.

 

Key Takeaways

 

  • While credit hire claims are relatively rare in the Republic of Ireland, they are becoming more frequent.
  • Claims handlers should aim to quickly recognise cases where Credit Hire is ongoing and take steps to ensure that repairs are authorised or payments raised in a timely fashion to avoid any significant delays.
  • When the daily hire rate appears excessive, it’s essential to challenge the charges with Basic Hire Rate evidence, as long as the Claimant is not relying on impecuniosity.

 

At Lacey Solicitors, we specialise in navigating the complexities of insurance law across both jurisdictions. Our team of experienced professionals is dedicated to providing clear, effective legal advice and representation to our insurance clients. Whether you’re dealing with credit hire claims, liability disputes, or policy interpretation, we understand the intricacies of insurance law and work tirelessly to achieve cost effective outcomes quickly. With a reputation for excellence and a deep understanding of the industry, our firm is committed to delivering trusted, reliable legal solutions in the ever-evolving world of insurance in Ireland.

Multiple Injuries and the Assessment of Damages, North and South.

Posted on by Damian McGeady (Partner)

A valued insurance client recently asked for guidance on measuring damages for personal injury in Northern Ireland, where multiple injuries are sustained, and how it compares to the approach South of the border.

 

Green Book Claims

 

The Green Book, or to give its official title, Guidelines for the Assessment of General Damages in Northern Ireland, was recently updated with the publication of the sixth edition. It is the NI equivalent to The Personal Injuries Guidelines. In applying the Green Book, the leading case on aggregating damages for multiple injuries is Wilson v Gilroy & Anor [2008] NICA 23.

 

Intuition

 

Much will depend on a trial judge’s determination and intuition.

 In Wilson, the Court of Appeal concluded;

In cases involving a multiplicity of injuries each of which calls for individual evaluation, it is well established that one should check the correctness of the aggregate sum (which is produced when one adds together the amounts for all of them) by considering the figure on a global or general basis. Essentially, this involves an intuitive assessment of the suitability of the sum produced to compensate the plaintiff’s overall condition.

Application

 

 In McAuley v Russell and others, Mr Justice Humphries applied a small discount on an aggregate award. In that case, he totted up the value of each injury as per the Green Book. The Plaintiff had suffered injuries including Left leg injury, Left arm injury, Right knee, Facial & ENT injuries, Scarring, Rib/chest injury, Concussion, Tooth injury, and an Adjustment Disorder. That amounted to an aggregate value of £250,000.  Applying the test of the Court of Appeal in Gilroy, the Judge reduced the award to £225,000.

 Theoretically, if the Court was satisfied, it could consider not applying a discount. It is not mandated; instead, it is for the Judge to decide. In practice, there will inevitably be a discount in most cases. The discount level may not be significant in some cases, such as the example in McAuley. When acting for Defendant Insurers, we would argue that there should be a much more substantial reduction than that given by the Court in McAuley. The truth is that another judge may well have given a lower award. Given, however, that it comes down to the intuition of the Judge, it would have been a difficult one to appeal.

 

 Claims under the Personal Injuries Guidelines

 

There is much more detailed guidance south of the border, where the proposed revised Guidelines have noted the application of the Jurisprudence of the Superior Courts.  See our previous insights where we highlighted that ‘The Uplift’ can exceed the value of the award for the dominant Injury in applying the new Guidelines.

Cases such as McHugh v Ferol and Lipinski (a minor) v Whelan, where the  High Court noted that the existing guidelines did not provide specific direction regarding the uplift that should be applied in cases of multiple injuries. In McHugh v Ferol, the court established that the combined uplift could, in certain circumstances, exceed the value of the award for the dominant injury. In the Lipinski case, the High Court gave clear guidance on calculating the compensation for psychiatric injury under the new guidelines. 

 In Zaganczyk Petit and others, the Court of Appeal referred to, with approval, the decision in McHugh v Ferol. In this instance, the Court of Appeal reduced the plaintiff’s award and gave further guidance on the methods of valuing psychiatric injury under the guidelines and procedures for calculating the uplift in a case of multiple injuries.

 If the revised guidelines are passed (as expected), these will be put on a formal footing.

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