IRL High Court. Judge refuses to strike out personal Injury case where there was inordinate and inexcusable delay.

In the case of McCarthy v Brandon Constrution and Others, Ryan J refused to strike out the Plaintiff’s personal injury action even where the court was satisfied that there had been inordinate and inexcusable delay.

The court held that once satisfied that there was inordinate and inexcusable delay, that it should apply the the approach that was set down by The Supreme Court in Primor v Stokes Kennedy Crowley.

“In Primor v. Stokes Kennedy Crowley [1996] 2 I.R. 459, the Supreme Court focused on whether the delay resulted in prejudice to the defendant in meeting the claim. The Court set the bar high for a defendant applying for a dismiss, holding that the question of particular prejudice was central to the exercise of discretion and it also endorsed and emphasised the importance of the role of the defendant in relation to the plaintiff’s delay. The Supreme Court held that the principles of law relevant to an application to dismiss an action for want of prosecution were that:-

1. the courts had an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice so required;
2. the party who sought the dismissal on the ground of delay in the prosecution of the action must establish that the delay had been inordinate and inexcusable;

3. even where the delay had been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice was in favour of or against the case proceeding;

4. when considering this obligation the court was entitled to take into consideration and have regard to –

(a) the implied constitutional principles of basic fairness of procedures,
(b) whether the delay and consequent prejudice in the special facts of the case were such that made it unfair to the defendant to allow the action to proceed and made it just to strike out the action,

(c) any delay on the part of the defendant, because litigation was a two party operation and the conduct of both parties should be looked at,

(d) whether any delay or conduct of the defendant amounted to acquiescence on the part of the defendant in the plaintiffs delay,

(e) the fact that conduct by the defendant which induced the plaintiff to incur further expense in pursuing the action did not, in law, constitute an absolute bar preventing the defendant from obtaining a dismissal but was a relevant factor to be taken into account by the court in exercising its discretion whether or not to dismiss, the weight to be attached to such conduct depending on all the circumstances of the particular case,

(f) whether the delay had given rise to a substantial risk that it was not possible to have a fair trial or it was likely to cause or had caused serious prejudice to the defendant,

(g) the fact that the prejudice to the defendant referred to in (f) might arise in many ways and be other than that merely caused by the delay, including damage to a defendant’s reputation and business.

O’Flaherty J. held that whilst the Court had inherent jurisdiction to dismiss a claim in the interests of justice where the delay in the proceedings was in all the circumstances so great that it would be unjust to call upon a particular defendant to defend himself, it was a jurisdiction which should not be frequently or lightly assumed.”

In applying these principles to the McCarthy case Judge Ryan was of the view that the action should not be dismissed for three reasons. “First, althought he proceedings were instituted only days before the third anniversary of the plaintiffs fall, he was under age for most of the period. Second, there was an explanation for the delay that had some basis in fact, even though it was inadequate. Third, the defendant was itself responsible for substantial delay and default by its own conduct in taking more than two years to deliver its defence.”

The full judgement can be found here:

Mr Justice Charleton in his Judgement in Flynn v Bus Atha Cliath chose to comment on the role of expert witnesses called in road traffic collision personal injury cases.

The Judge noted that in the case at hand, three expert witnesses were called to give evidence in respect of liability, being an engineer for the Plaintiff and one for the Defendant and an expert in driving for the Plaintiff. In addition, the Judge noted that five medical personnel were called in this “simple” case about bruising to a leg and a sore back.

The Judge noted the benefit of experts in resolving specialised issues stating that, “the purpose of an expert witness is to enable the Court to be instructed on arcane disciplines which are outside the experience of a Judge or jury”.

The Judge noted however that in the case at hand at one point the court was informed by an expert of the average speed of the average person walking. The Judge indicated that this is something which is clearly common knowledge.

The Jude went on to comment upon the type of expert evidence that should be given. He noted that in this case which concerned the speed of a bus and braking reaction times due to the presence of a pedestrian on a roadway, “that with the exception of making a calculation as to the speed of the bus by reference to landmarks passed on the video and the distance ahead of the child that was on the road, none of the testimony that was given by the experts involved any expertise. Nor was the evidence, outside that set of calculations as to speed and distance, admissible as expert evidence. Instead it was inadmissible opinion and comment”.

The Judge did stress that his comment is not a criticism of Counsel and it is not a criticism of the experts involved and acknowledged that the practise was now universal and thought it would be worthwhile controlling it as additional costs and excess length of time taken to try a case may impede the constitutional right of citizens to have recourse to the courts. The Judge did indicate that appropriate Orders as to costs focusing on unnecessary experts may assist in that regard as may further Rules of the Court.

The full Decision can be found here:

In the case of Flynn v Bus Atha Cliath [2012] IEHC 398 Charleton J held that the plaintiff had been injured whilst rising from her seat to alight from the bus. The injuries were caused by the momentum of the vehicle changing dramatically due to the braking of the driver.

The Judge accepted however that the drivers actions were entirely reasonable, a child having ran on to the road in front of the bus.

He said “The courts cannot apply a counsel of perfection. The duty of care expected of a driver is a high standard but it is still to be measured by the reactions and expectations of reasonable men and women.”

He went on to conclude, “Nothing could have been done to avoid the accident to Mrs Flynn. The bus driver Mr Friel reacted correctly to a potential hazard to life. In the circumstances, the case must be dismissed.”

The full report is here:

In the case of Fagan v Griffen, the court had to assess damages where the Plaintiff had suffered significant injury.

The Plaintiff is 32 years of age. He is an engineer with a Degree from Trinity College, Dublin. He had no memory of the incident, and had suffered from amnesia for a number of weeks.

He sustained a serious head injury, fracture of the sternum, minor lung contusion and abdominal injuries. He underwent a number of operations whilst hospitalised. He had been left with some scarring although the scarring formed very little as regards the case. He had suffered from double vision which had persisted for some time and was suggestive of a significant closed head injury which led to fourth cranial nerve palsy on the right hand side which had improved. He was left with a clicking sensation in his ankle and had some difficulty with his gait. He had suffered some soft tissue injury to his back, had lost a front tooth which was repaired and a noted diminution in the senses of taste and smell.

Although his physical injury was significant, it was agreed that the Plaintiff had made a remarkable recovery.

The main area of contention in the case was the issue of the Plaintiff’s psychiatric injury and whether his personality had been changed as a result of the incident.

Having heard substantial evidence, the court found that the Plaintiff’s personality had indeed changed, and notwithstanding the fact he had largely physically recovered, the change in his personality had greatly impinged his employment prospects. Mr Justice Cross awarded a sum of €532,160.00 for future loss of earnings allowing a 10% reduction for Reddy v Bates.

The total special damages claim (of which future care costs were set at €300,000.00) came to €1,139,380.90.

When assessing general damages, the court noted that the purpose of damages in tort is insofar as money can do, to put the Plaintiff into the same position had the incident not occurred.

The court recognised that on any view of the matter, although the Plaintiff’s physical injuries had largely settled, they were significant indeed. The court acknowledged that the Supreme Court in Sinott v Quinnsworth had indicated that a cap should be placed on general damages in circumstances in which the Plaintiff has been awarded substantial sums in past and future expenses.

The court noted the Decision of Quirke J in Maggie Yang Yun v Motor Insurers Bureau of Ireland (2009) IEHC 318 which found the appropriate present cap on general damages was €450,000.00.

The court however also acknowledged that it is important to note that what was decided in Sinott v Quinnsworth was that there was a cap on general damages, not that general damages in case that failed to reach the standards of being the most extreme should suffer a pro rata diminution. Quirke J acknowledged therefore that although there is a cap on general damages, many cases may be entitled to a figure up to the level of that cap.

In this case however Mr Justice Cross acknowledged that while in many ways these were catastrophic injuries, they did not represent such an insult to the Plaintiff that they could be categorised as being in the most extreme grouping.

Interestingly, he noted “while I am obliged to have regard to the Book of Quantum, I find that nothing in this book is of great assistance to me”. He assessed general damages in the sum of €150,000.00 for pain and suffering to date and €100,000.00 for pain and suffering into the future, being a total of €250,000.00.

The total award was for €1,389,308.90.

The full Judgement can be found here:

I liked this from Hogan J in a recent Irish High Court action.

“It might seem surprising that litigation presently pending in the District Court of Denver, Colorado (“the Colorado litigation”) concerning a disputed share purchase contract of the shares of an oil company registered in St. Kitts and Nevis and which is currently operating in Belize should give rise to an application in this jurisdiction for evidence to be taken on commission of an investigative journalist and a former theologian who specialises in the investigation of cults.”

Interested? Read the full Judgement here:

Enjoy.

Are you looking for a recent text book on Insurance Law? Try Alison Padfiels’s Insurance Claims, reviewed here, by The Student Law Review

Read more here.

Worryingly there appears to be anecdotal evidence of Claims Farmer ‘Ambulance Chasers’ moving in on the Irish PI system. The Practice is widespread.

The full text of The Injuries Board Press Release is below:

INJURIESBOARD.IE INTERIM REPORT 2012
Modest but consistent rise in new claims:
Recession, aggressive promotion and ‘ambulance chasing’ likely causes
New issue-specific claims emerging – Thalidomide and DePuy

InjuriesBoard.ie, today Wednesday, 26th September, 2012 released details of its work in the first six months of 2012. Data for the period shows a gradual but consistent increase (4.1%) in claims volumes compared to the same period in 2011. Though not the recessionary spike that some had predicted, the increase warrants ongoing monitoring as there is little evidence of a matching increase in accidents. The period also saw the emergence of issue-specific claims linked to Thalidomide and De Puy hip replacements.

In the six months to June, Injuries Board.ie received 14,669 claims, an increase of 4.1% on the comparable period in 2011. Awards totaling €109.04 million were made in respect of 5,180 personal injury claimants. Motor accidents continue to account for 59.4% of personal injury claims with public liability and employer liability accounting for 27.2% and 13.5% respectively. This reflects a slight increase in public liability volumes and a slight reduction in the volume of workplace claims (circa. 1%), consistent with ongoing lower numbers at work.

The rising claims trend has continued into the second half of 2012. Though it is difficult to be definitive, anecdotal evidence suggests a mix of contributory factors including:

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

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

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

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

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

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

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

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

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

The GB Court of Appeal in Simmons v Castle [2012] EWCA Civ 1039 took the opportunity to announce an increase in General Damages in most Tort actions from 1st April 2013.

The rise is on foot of the recommendations of Sir Rupert Jackson contained in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. One of the fundamental features of the recommendations was an envisaged rise of general damages of 10%.

The Court of Appeal ruled that the uplift should be applied to all personal injury awards from April 2013 to include cases launched before that date.

The Association of British Insurers (ABI) although not a party to the action, has appealed the decision.

A spokesman for the ABI said: ‘At the moment this upsets the balance that was intended by the Legal Aid, Sentencing and Punishment of Offenders Act. We have always known about the 10% uplift, but it was supposed to be balanced by a reduction in legal costs.’

Following from my last post regarding the Court of Appeal decision Simmons v Castle [2012] EWCA Civ 1039, I note that the matter was the subject of submissions before the Supreme Court in the last number of days.

The ABI appealed the Court of Appeal decision that the Jackson 10% uplift should be applied to all personal injury awards from April 2013 to include cases launched before that date.

Insurers submitted that defendants stand to lose more than £300m if claimants are given the ‘windfall’ of a risk-free rise in damages.

The ABI said it accepted the uplift – a key element of Lord Justice Jackson’s review of civil litigation costs – in principle, but argued it should not apply to claimants already benefiting from conditional fee agreements.

The Association of Personal Injury Lawyers which was also not a party to the Court of Appeal case told the panel of judges that damages were already too low, and that the uplift was intended to address this problem, rather than offset the changes to CFAs.

A decision is imminent….

Does the existence of legal proceedings between a data requestor and a data controller preclude a data requestor making an access request under the Act?

In the case of Bus Atha Claith/Dublin Bus (the Appellant) .v. The Data Protection Commissioner (the Respondent) the High Court considered an Appeal from the decision of the Circuit Court which had upheld a decision of The Data Protection Commissioners to issue an Enforcement Notice requiring the Appellant to prevent a copy of CCTV footage to a personal injury claimant.

The claimant had allegedly fell on a bus. She made an application to the Injuries Board. She also made an access request pursuant to Section 4 of The Data Protection Act 1988 (as Amended) for release of CCTV footage of the incident. Her solicitors had previously attended at the Office of the Appellant and viewed the CCTV footage. The Appellant rejected the Application on the grounds that any such information was prepared in anticipation of potential litigation and was as such privileged. The personal injury claimant notified the Data Protection Commissioner who instigated an investigation into the matter. Shortly after a Personal Injury Summons was issued in The High Court by the personal injury claimant.

The Data Protection Commissioner subsequently issued an Enforcement Notice requiring the Appellant to provide a copy of the CCTV footage to the alleged injured party. The Appellant appealed the decision to The Circuit Court which upheld the decision of The Data Protection Commissioner.

Bus Atha Claith/Dublin Bus Appealed that decision to The High Court on a point of law.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Appeal was dismissed.

The text of the Judgment can be found here :