Second and Final Personal Injuries Commission Report Published.

July 2018 saw the publication of the second and final report of the Personal Injuries Commission. The Personal Injuries Commission was established in January 2017 to undertake extensive research into the cost of insurance and personal injury claims in Ireland. The report highlighted that the level of general damages for soft tissue (whiplash) injuries in the Republic of Ireland runs at around 4.4 times that of Northern Ireland, England and Wales.  It confirmed that such high levels of awards resulted in severe difficulties for business representatives, small firms and other individuals seeking insurance in the form of high premiums and devoting resources to defend the high volumes of claims based. The Personal Injuries Commission recognised the negative impact of high insurance premiums on consumers, with individual consumers facing huge difficulties as they struggle to afford their annual premium. Whilst it was beyond the scope of the report of the commission to analyse in detail why Irish payments and awards were higher than those in the UK.  The report did acknowledge that historically it has always been the case and what the report did do was evidence, for the first time, the scale of this difference. The report stated; “a primary aim of government policy is to ensure that Ireland is and remains a good environment which businesses can establish and operate. Such considerations underpinned the establishment of the Commercial Court in 2004, the success of which is widely acknowledged. It is important for businesses to believe that they can operate in a market which is untrammelled by distortions or anomalies which are in inimical to their interest and survival. ...

Darragh, Kevin and Ivan Hunter, Aaron Keely and ors v Feeney, Gareth and Ryan’s Investments (N.I.) Ltd, trading as Hertz Rent a Car.

The article illustrates the difficulties arising from pursuing an order under Section 26 of Civil Liability and Courts Act 2004. Outlined below is a recent High Court highlighting the difficulty insurers have on pursuing a case dismissal under Section 26.   Section 26 states that “if a plaintiff claiming injury does not tell the truth on affidavit or does not tell the truth in Court, then the Court has discretion to either dismiss the claim in its entirety or penalise the plaintiff in respect of any damages made. Even on the occasion where a plaintiff has done so unwittingly or even innocently. Where a Court is satisfied that the requirements of Section 26 have been met, then the provisions of Section 26 are binding.   Buncrana Circuit Court awarded seven plaintiff’s damages between €5,050 and €9,550 as a result of a collision on 28 June 2011 involving two cars on a roundabout in Lifford, County Donegal.   The plaintiff’s each claimed for soft tissue injury. Firstly, against the driver of the vehicle responsible for the accident and secondly, against Ryan’s Investments NI Ltd trading as Hertz Rent-A-Car whom the negligent driver’s car was hired.   Ryan’s investments insurers appealed the award made by the Circuit Court branding the accident as a “fraud.” They claimed those involved knew each other via membership of Republican commemoration groups and that the accident had been fabricated with the sole purpose of extracting the maximum compensation from the driver’s insurance company.   Mr. Justice Charles Meenan, who delivered the High Court judgement in July rejected this claim. He maintained the most that was admitted...

Platt v OBH Luxury Accommodation Limited & Anor [2017] IECA 221

The recent Court of Appeal judgment of Platt v OBH Luxury Accommodation Limited & Anor [2017 IECA 221] concerned an exaggerated claim and the Plaintiff was found to have lied. Case Overview: Mr Jason Platt, (known as the plaintiff) had travelled to Kinsale for a Valentine’s weekend break and he and his partner were staying at the Old Bank House, Pearse St, Kinsale where he claims the accident took place on February 15, 2009. The plaintiff alleged he fell from a windowsill in a room in the defendant’s hotel. As a result, his ribs, spine and hip were severely damaged. Mr Platt had sued OBH Luxury Accommodation Ltd with offices at Pearse St, Kinsale and company director Ciaran Fitzgerald. Nevertheless, the hotel owners contended that Mr Platt threw himself from the window of his guestroom following a heated argument with fiancée. Mr Platt sought compensation for his injuries and was presented through his testimonies as a poor man suffering chronic pain and discomfort. The plaintiff had also submitted under oath, an affidavit verifying a schedule of special damages and future loss claiming almost £1.5 million. It became apparent that he was found to have intentionally deceived the court and overstated the level of his agony and the degree of his incapacitation. High Court: Regardless of finding the Defendants 60% responsible, Barton J. discharged the Plaintiff’s claim after video evidence submerged of him going shopping, driving, carrying bags, and walking unassisted. (a clear disparity to the testimony from the Plaintiff who emphasized how extremely incapacitated he was as the Plaintiff had previously specified that he was now duty bound to...

Judge finds in favour of defendant in road traffic collision case due to plaintiff’s own negligence.

Mr. Justice Barr delivered his judgement on the 31st day of May 2017 in the matter of Duffy v Lyons.  The action involving a road traffic accident which took place on 8th September 2014 at the junction of Crumlin Road and Rafters Road, Dublin 12. This High Court case centred around liability and contributory negligence. The plaintiff stated that he was in the process of making a right-hand turn on his bicycle, he was collided into by the defendant’s car, which was proceeding along Crumlin Road coming in the opposite direction. The plaintiff’s case was, had the defendant been driving with reasonable care, he ought to have seen the plaintiff’s bicycle on the junction and should have avoided the collision. The defendant (Mr Lyons) case was that the plaintiff emerged suddenly onto his side of the road, from between a line of traffic that was backed up on the opposite side of the road and that he had no chance to avoid the collision. Mr Justice Barr favoured the evidence given by the defendant because the plaintiff had contributed to his own misfortune. The judge explained, the accident was predominantly caused by the negligence on the part of the plaintiff in failing to yield right of way to the defendant’s vehicle and in failing to keep a proper lookout to his left before crossing onto the far carriageway on Crumlin Road. The judge found that Mr Duffy was clearly negligent in relation to his own safety in failing to wear a helmet. While the failure to wear a helmet had no causative effect in relation to causation of the...

Insurance (Amendment) Bill 2017

The Irish government has agreed upon the outline of the insurance amendment bill 2017. Minister for Finance, Mr Paschal Donohoe outlined yesterday “The failure of Setanta and the ambiguity that followed over the compensation arrangements for claimants emphasised weaknesses with the current insurance compensation framework.” The new legislation will implement the recommendations of the report written by the Framework for Motor Insurance Compensation, therefore greater certainty for both consumers and industry will be provided, concerning the insurance compensation framework in Ireland. As well as seeking clarity on the insurance compensation framework in Ireland, the Bills key objective, when enacted, will be to increase the level of cover to clients of insolvent insurance companies to 100 per cent instead of the existing level, currently at 65 per cent. This will bring it into line with the compensation levels paid out by the Motor Insurer’s Bureau of Ireland (MIBI). In addition, this increase will be backed by the insurance industry with safety measures implemented to protect the industry in the unfortunate event a motor insurer finds itself in liquidation. A legal basis will also be delivered for motor insurers functioning in the Irish market to contribute an amount equal to 2% of gross written motor premiums to an ex-ante fund which will be held by MIBI enabling the industry to meet its 35% commitment. The Central Bank of Ireland and the State Claims Agency will now have an official role regarding administering the funds if any insurance company finds itself in financial difficulty. A time limit for making applications to the High Court for payments from the ICF will also be...

Northern Ireland High Court Judge Contemplates Alternative Investment Of Minor Settlement Monies

Mr Justice Stephens recently pondered alternatives to the customary investment of Minor damages in a Minor personal injury case brought by this firm, Lacey Solicitors.   It is understood that this is the first time the Court has considered an alternative to the conventional mechanism in place whereby compensation is paid to the Accountant General and managed by the Court Funds Office.   Mr Justice Stephens was minded, if possible, to invest the sum approved into a Child Specific ISA or some other similar type product that would provide maximum security and interest for the Minor’s damages until reaching the age of majority. The Minor’s legal representatives were asked to assist the Court in assessing whether such a step would be permissible under the current Statutory arrangements and Court powers. Having considered the relevant legislation and the Court of Appeal decision and Judgement of McCloskey J, the Judge at first instance in the case of The Northern Ireland Courts and Tribunals Service –v- The Official Solicitor to the Court of Judicature in Northern Ireland, it would appear that the Court has the power to direct that the monies are invested as they see fit. In this particular case, on balance, taking in to account the circumstances of this particular Minor Plaintiff, it was found that there would be no benefit in diverging from the Court Funds investment route.  As this would appear to be the first time the Court considered alternative routes, some guidance for practitioners will be set out in a publication which will be available on the NI Courts Service website in due course. Jenna...
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