Monahan -v- Dunnes Stores & Ano

On the plaintiff’s behalf it was submitted that the payment which she received was payable by Friends First in respect of the injury which was the subject matter of wrongful act in the proceedings and was a payment that was paid under a contract of insurance which therefore was a sum which was not deductible by virtue of the provisions of s. 2(a) of the Act. They relied on the decision of Geoghegan J. in Greene v. Hughes Haulage [1998] 1 ILRM 34, a case in which the wording of s. 2 of the Act was considered.

In that case, the plaintiff’s employer, Elan Corporation, had an Employee Benefit Plan in place designed to provide its employees with certain pension, early retirement and death in service benefits. The Employee Benefit Plan also entitled its members to certain income benefits in the event of prolonged disability. The latter benefit, which was described as the “Disability Benefit Plan”, was operated by way of separate arrangement from the other benefits under an Employee Benefit Plan and was governed by a policy of insurance made between Elan and Irish Life. Geoghegan J. decided that the payments made under the Disability plan were not deductible against the plaintiff’s loss of earnings claim and that it was immaterial that she had not been a party to the contract. It was a contract that had been made for her benefit and was therefore to be considered as part of her overall remuneration such that she should be considered to have indirectly contributed to the premium.

In applying the authority, Irvine J stated “integral to both schemes is the fact that the policy was taken out for the benefit of the employee who might become disabled. Accordingly, I see no reason not to apply the principles outlined in Greene to the present case.”

The full judgement can be read here:

S.Major, Lacey Solicitors

Salako -v- O’Carroll

Peart J, in his ruling, stated that there was no injustice in doing so, due to the lack of truth and attempts to mislead the court in the evidence given by the Plaintiff, a national of Toga, referring to her as “a very poor historian.”

Despite reporting back and neck pain, and the need to use a crutch on an intermittent basis, video footage obtained by private investigators showed the Plaintiff only making use of the crutch on days when she had medical appointments arranged by the Defendants which, along with the multiple inconsistencies and inaccuracies in her evidence, was enough to satisfy the Judge that dismissing the claim under the 2004 act would not be unjust.

The full judgement can be read here:

S.Major, Lacey Solicitors

Donohoe -v- Killeen

Hogan J stated that the case was of considerable difficulty to the court, due to the absence of independent third party evidence. Both forensic engineering experts who gave evidence agreed that it was almost impossible to determine by reference to some objective facts – such as, for example, an examination of the collision damage to the vehicles – which of the vehicles collided into the other.

In making his determination, the Judge attempted to determine what the most likely sequence of events was. Given that the Court knew that one of the drivers had broken the lights,and that both vehicles were travelling at modest speed, he stated that this suggested that the driver who broke the lights did so inadvertently.

He ruled therefore that the plaintiff who was driving on a complex roundabout with awkward traffic sequences, had just come through an amber light at the second stop and was now facing a third set of traffic lights within the space of about 120m was the most likely one to have broken the lights. He stated however that if the defendant had kept a complete and proper look-out, he would – or, at least, might – have seen the plaintiff’s vehicle approaching and could have used the available few seconds to sound the horn or otherwise take evasive action. In that respect, therefore, there was, objectively speaking, a degree of fault on the part of the defendant, even if the degree of fault attributable to the plaintiff was greater than that applicable to the defendant.

The full judgement can be read at:

S.Major, Lacey Solicitors

Burgess & Anor -v- Mulholland & anor

Irvine J ruled that the local authority was negligent in a number of respects in relation to its management of this dangerous junction as of the date of the plaintiff’s accident. Firstly, in setting up an alternative pedestrian crossing, it did so in circumstances where it made it extremely difficult for a pedestrian to access the pedestrian signal box to avail of what is commonly described as the “green man” phase provided for within the traffic light sequence. The pole upon which that signal was mounted was located amongst road traffic cones and other debris on an area of broken ground adjacent to the roadway. The location of the traffic light pole on which the pedestrian signal box was mounted was positioned so that any pedestrian trying to access it would have to try to reach their hand around in a blind type of fashion in order to try to depress the signal by exerting pressure on the glass plate to the front of the signal box.

The Court further found that the local authority’s negligence in respect of the configuration of the temporary pedestrian crossing was further severely compounded by the negligence of its servant or agent, Mr. Sutcliffe, in his driving the local authority truck. He drove the vehicle which had a cab 83 inches high almost 25ft beyond the stop line. It was found that the effect of his breach of duty in this regard was that the plaintiff’s intended path of travel across the temporary crossing was impeded, but more significantly, the positioning of his vehicle made it impossible for a pedestrian of the plaintiff’s height to see clearly the pedestrian red/green man signal on the traffic light on the central island to which he had intended travelling.

Irvine J found that in this regard, it was more than reasonably foreseeable that in these circumstances where the plaintiff’s line of sight to the red/green man signal was impeded and where he did not have ready access to the signal box controlling the pedestrian crossing and when traffic was stationary in his favour would decide to cross the roadway without seeking to deploy the pedestrian signal.

The full judgement can be found here:

S.Major, Lacey Solicitors

Richardson -v- Premimionas & Ors

On the 17th January 2008 the plaintiff was in his VW Cabby Van waiting at a junction to make a right turn when a car being driven by the uninsured first named defendant came through a red light and collided with the plaintiff’s van.

After the accident, he continued to suffer back and neck pain which restricted him from carrying out his work. The challenge for the court in assessing the damages due to the plaintiff was that the work, as a scenic painter on the set of films, was of a specific and sporadic nature, with his pay ranging from €55,000 in one year to only €8500 in another.

In assessing damages, Peart J. stated “In arriving at a fair methodology for calculating a loss, I must take into account the sporadic nature of the work concerned… Accordingly I intend to begin from a headline annual average earnings of €36,000, rather than take the best of the years 2007-2011… If one was to work on the basis that in the future the plaintiff was likely to be able to earn a figure of €25,000 per annum, the capitalised loss to age 65 is €114,405.”

The total of general damages awarded came to €140,000. Agreed special damages and future loss of earnings amounted to €142,540, making a total for general damages and special damages of €282,540 for which there was judgment in favour of the plaintiff.

The full judgement can be read here:

S. Major, Lacey Solicitors

By Aoife O’Connor, on work experience with Lacey Solicitors from Rathmore Grammar School, Belfast.

Anne Doody v Niall Clarke

The circumstances of this case are that on the 26th March 2008, the plaintiff was struck in the eye by an egg thrown by a passenger in the defendant’s car. The plaintiff’s injuries led to the loss of sight in her eye and subsequent removal and artificial replacement of her eye, and she continued to suffer pain and psychological trauma.

The defendant and his passengers had the intent of ‘egging’ a house where there was a party to which they were not invited. On a stretch of road between the store where they purchased the eggs and the house, one of the passengers threw an egg from the window at the plaintiff, who was walking with two friends. The defendant and his friends drove on after the incident, unaware of the severity of the plaintiff’s injury, and ‘egged’ the house as well as several party guests.

The plaintiff believed that the defendant was vicariously liable for his passengers’ actions and directly liable for his failure to properly control his motor vehicle, violating the Road Traffic Act 1961. The plaintiff argued that the defendant knew or ought to have known that the eggs were being ‘messed with’ by the passengers. Furthermore, that the backseat window was at least partially open, and the defendant should have taken further precautions, beyond a warning, to ensure the safety of his fellow road users, for example close the window, stop the car, remove the passengers from the vehicle or order the eggs be put away.

The defendant argued that the acts were his passengers and not his own, and that the plaintiff was creating an onerous standard and that the egg throwing was not foreseeable.

Evidence in the case included statements from the plaintiff and her companions with whom she was walking at the time of the incident, the defendant and his passengers, complaints from the residents of the subsequently ‘egged’ neighbourhood, CCTV footage of the eggs being purchased and the plaintiff’s medical reports.

Mr Justice Kevin Cross delivered his verdict on 13th of November 2013. Although he accepted that the defence and his passengers all had the common purpose of ‘egging’ and had general malice intended, and that the defendant knew or ought to have known about the passengers ‘messing with’ the eggs in the backseat as well as the open window, the judge dismissed the case on the grounds that he agreed with the defence, that the plaintiff was trying to impose an onerous standard for the defendant. However had there been any evidence of discussion in the car about ‘egging’ the pedestrians, this verdict would not have been given. He concluded that he did not believe from the evidence that the defendant was in breach of the duty of care that he undoubtably owed the plaintiff.

The Case Is Reported Here:

In the case of O’Connor v Laffin the High Court in Dublin dismissed an action by a plaintiff who claimed he had been injured when struck by a wing mirror of a passing van.

In listing his reasons for doubting the reliability of the plaintiff’s evidence, the O’Neill J stated that “having regard to the fact that the plaintiff is described as over 6ft in height, it would seem to me to that it would have been impossible for the plaintiff to have been hit at the back of his neck, shoulder or head area if he was walking across the roadway, as he described it. Had he been stooped, he could not have been hit by the wing mirror at all as other parts of his body would have been impacted with the side of the vehicle. The plaintiff was probably walking reasonably upright in which case it would have been simply impossible for this wing mirror to have struck him where he says it did.”

The full judgement can be read here:

Damian McGeady, Lacey Solicitors

In the case of Gallagher v McGeady the Irish High Court ruled that the Plaintiff was guilty of contributory negligence in the amount of 40% for allowing herself to be a passenger in a car where the driver had consumed alcohol, and for not wearing a seatbelt, causing injury.

Ryan J had heard from Counsel that in cases where the passengers allowed themselves to be carried by persons under the influence there are decisions ranging from 30% to 50% Contributory Negligence, and in the worst case scenario there is precedent of up to 55% Contributory negligence for failure to wear a seatbelt. Unfortunately the judgement did not cite the relevant authorities quoted by Counsel in the case.

The leading case concerning a passenger in a vehicle driven by a drunk driver is Hussey v Twomey, a decision of the Supreme Court, reported by this blog here:

The full judgement in Gallagher v McGeady can be read here:

Damian McGeady, Lacey Solicitors

In the case of Richardson -v- Premimionas & Ors Peart J in the Irish High Court addressed the issue where the challenge for the court in assessing the damages due to the plaintiff was that the work, as a scenic painter on the set of films, was of a specific and sporadic nature, with his pay ranging from €55,000 in one year to only €8500 in another.

In assessing damages, Peart J. stated “In arriving at a fair methodology for calculating a loss, I must take into account the sporadic nature of the work concerned… Accordingly I intend to begin from a headline annual average earnings of €36,000, rather than take the best of the years 2007-2011… If one was to work on the basis that in the future the plaintiff was likely to be able to earn a figure of €25,000 per annum, the capitalised loss to age 65 is €114,405.”

The Judge awarded a figure on the basis of a clear and pragmatic approach, which should be of interest to practitioners.

The full judgement can be read here:

A Claimant who knowingly gave false or misleading information to a solicitor at his home in an affidavit in the course of Personal Injury proceedings has been the first to be convicted under the provisions of the Civil Liability and Courts Act 2004.

Sections 14 & 26 of the Act are reproduced below

Verifying affidavit. 14.—(1) Where the plaintiff in a personal injuries action—

(a) serves on the defendant any pleading containing assertions or allegations, or

(b) provides further information to the defendant,

the plaintiff (or in the case of a personal injuries action brought on behalf of an infant or person of unsound mind by a next friend or a committee of the infant or person, the next friend or committee) shall swear an affidavit verifying those assertions or allegations, or that further information.

(2) Where the defendant or a third party in a personal injuries action serves on another party to the action any pleading containing assertions or allegations, the defendant or third party, as the case may be, shall swear an affidavit verifying those assertions or allegations.

(3) Where a personal injuries action is brought on behalf of an infant or a person of unsound mind by a next friend or a committee of the infant or person, an affidavit to which subsection (1) applies sworn by the next friend or committee concerned shall, in respect of assertions, allegations or further information, of which he or she does not have personal knowledge, state that he or she honestly believes the assertions, allegations or further information, to be true.

(4) An affidavit under this section shall be lodged in court not later than—

(a) 21 days after the service of the pleading concerned or such longer period as the court may direct or the parties may agree, or

(b) in the case of a requirement to which subsection (8)(b) applies, 7 days before the date fixed for the trial of the personal injuries action concerned.

(5) If a person makes a statement in an affidavit under this section—

(a) that is false or misleading in any material respect, and

(b) that he or she knows to be false or misleading,

he or she shall be guilty of an offence.

(6) The reference to court in subsection (4) shall—

(a) in the case of a personal injuries action brought in the High Court, include a reference to the Master of the High Court, and

(b) in the case of a personal injuries action brought in the Circuit Court, include a reference to the county registrar for the county in which the proceedings concerned were issued.

(7) An affidavit sworn under this section shall include a statement by the deponent that he or she is aware that the making of a statement by him or her in the affidavit that is false or misleading in any material respect and that he or she knows to be false or misleading is an offence.

(8) This section applies to personal injuries actions brought—

(a) on or after the commencement of this section, and

(b) before such commencement, where a party to the action requires (not later than 21 days before the date fixed for the trial of the action) another party to the action to swear an affidavit in accordance with this section.

Fraudulent actions. 26.—(1) If, after the commencement of this section, a plaintiff in a personal injuries action gives or adduces, or dishonestly causes to be given or adduced, evidence that—

(a) is false or misleading, in any material respect, and

(b) he or she knows to be false or misleading,

the court shall dismiss the plaintiff’s action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.

(2) The court in a personal injuries action shall, if satisfied that a person has sworn an affidavit under section 14 that—

(a) is false or misleading in any material respect, and

(b) that he or she knew to be false or misleading when swearing the affidavit,

dismiss the plaintiff’s action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.

(3) For the purposes of this section, an act is done dishonestly by a person if he or she does the act with the intention of misleading the court.

(4) This section applies to personal injuries actions—

(a) brought on or after the commencement of this section, and

(b) pending on the date of such commencement.

Practitioners should remind Plaintiff’s when swearing Affidavits of verification pursuant to Section 14 above, that the Court will dismiss the Plaintiff’s claim in the event that the Court is satisfied that the Plaintiff has given false and misleading information and that there is real danger of a criminal prosecution in such circumstances.

Insurers may be more disposed to reporting Plaintiffs whose claims have been dismissed pursuant to Section 26.

A press report of the case can be found here:

Damian McGeady, Lacey Solicitors.