Insurance Law Ireland

Passenger in Drunk Driver vehicle failing to wear seat belt found 40% responsible for own injuries.

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: http://laceysolicitors.typepad.com/insurance-law-ireland/2012/09/irl-recent-cases-in-pi-litigation-part-4-passenger-in-a-drink-driver-vehicle-the-case-of-hussey-v-twomey-and-others-20.html

 

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

 

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/9451186981c135ea80257b340055c097?OpenDocument

 

 Damian McGeady, Lacey Solicitors

Six Foot Plaintiff too tall to be struck on head by wing mirror. Case Dismissed.

 

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:

 

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/08133e32290f02bf80257ae5004f88f7?OpenDocument

 Damian McGeady, Lacey Solicitors

CIVIL LIABILITY AND COURTS ACT 20014- FIRST CONVICTION FOR FALSE AND MISLEADING EVIDENCE
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: http://www.breakingnews.ie/ireland/personal-injury-fraudster-avoids-jail-616907.html#.UsqcA0hNB4k.twitter

Damian McGeady, Lacey Solicitors.

Loss of Earnings calculations where there is a sporadic history

How does the Court approach future loss of earnings where the Injured Party has a sporadic earning history?

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:

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/41353c13f66f23b780257adb003d8abd?OpenDocument

IRL Supreme Court allows an appeal to appellants seeking to set aside a third party notice.

O'Byrne v Michael Stein Travel Ltd & ors

The court ruled that the learned trial judge erred in law in failing to have regard to the inordinate delay on the part of the respondent in seeking to join the appellants as third parties, and to the failure of the respondent to give an explanation for the delay.

O’ Neill J in the IRL High Court had previously stated that the case against the appellants who, as the parents of the plaintiff who was a minor at the time of an accident on holiday, had been issued with a third party notice, was one of substance and that there was no prejudice. He held that to strike out the third party notice against the appellants would be disciplinary and that, referring to words of O’Flaherty J., orders should not be made for disciplinary purposes.

The Supreme Court accepted the submissions of the appellants that there was a considerable delay in issuing the motion to join the appellants as third parties. They sought to set aside the third party proceedings under Order 16, Rule 8 which states that the third party proceedings may at any time be set aside by the Court.

They held that the respondent did not set out any details as to why the delay had occurred, or any excuses for the delay and stated that there needs to be evidence as to the reasons for, and excuses for, a delay. This was absent in the case. The onus lay on the respondent, but no explanation for the delay was given.

The full judgement can be read here:

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/12e07d7f7f68775280257ad90058869d?OpenDocument

 

S. Major, Lacey Solicitors

Monetary jurisdiction of District & Circuit Courts to increase from 3rd February 2014

As and from 3rd February 2014 the new monetary jurisdictions will be as follows:

- the jurisdiction of the District Court in civil proceedings will increase from €6,384 to €15,000
-
- the jurisdiction of the Circuit Court in civil proceedings will increase from €38,092 to €75,000, except in personal injuries cases where a reduced increase of €60,000 is introduced.

We understand that the Minister intends to introduce new District Court Rules including:

- District Court Scale costs
- new Superior Court Rules
- new Fees Orders for all courts in January 2014 (court fees are unlikely to be reduced)

It is likely these changes too will be effective as and from 3rd February 2014.

IRL High Court rules installation of a glass door which caused injury was not negligence.

_________________________________________

Newman -v- Cogan & Anor
_________________________________________

O’Neill J ruled that that the defendants had not failed, pursuant to s. 3 of the Occupiers Liability Act 1995, to take reasonable care in respect of the plaintiff, a visitor on the premises, to ensure that the plaintiff did not suffer injury or damage by reason of any danger existing on the premises after the plaintiff suffered the loss of an eye due to shards of glass entering her eye when a door pane was smashed.

The plaintiff sought to rely on the case of Wells v. Cooper [1958] 2 Q.B. 265, a decision of the United Kingdom Court of Appeal in which it was held as follows as revealed in the head note:-

“Held dismissing the appeal,
(1) That on either ground of action the duty owed by the defendant to the plaintiff was a duty to take reasonable care for safety.

(2) That, in the case of such a trifling domestic replacement, a man of the defendant’s experience was justified in undertaking it himself.

(3) That the degree of care and skill required of a householder undertaking his own repairs was to be measured not by reference to his own degree of personal competence, but by reference to the degree of care and skill which a reasonably skilled carpenter might be expected to apply to the work in question.

(4) That, since the defendant, a reasonably competent carpenter, was doing his best to make the handles secure, he must be taken to have discharged his duty of care unless his belief that three quarter inch screws would be adequate was one which no reasonably competent carpenter would reasonably entertain, and the evidence failed to establish that.

Per curiam. The decision did not mean that the degree of skill and care required of an inviter such as the defendant was to be measured by the contractual obligations as to the quality of his work assumed by a professional carpenter working for reward, which was of a higher standard.”

The Judge ruled however, that it could not reasonably be suggested that a householder who elects to carry out a relatively simple repair, such as the replacement of a pane of glass, could be expected to be familiar with the technical standards set down in the technical guidelines associated with the Building Regulations. Thus, it could not be said that a householder, who was a reasonably competent glazier, such as the first named defendant, could not have reasonably believed that the glass chosen was suitable for this location.

O’Neill J also commented that to hold the defendant liable in negligence for installing this door pane this would be to impose upon the defendants a duty of care which would be artificial and which, in all probability, they had no real chance of discharging. Thus, in choosing this particular type of glass, which is in common usage in dwellings, it could not reasonably be said that the defendant failed in his duty as occupier of this premises, to the plaintiff, to take reasonable care to protect her from dangers on the premises.

The full judgement can be read here:

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/c3211cc276a2fc1580257ad7005ca886?OpenDocument

S.Major, Lacey Solicitors

IRL High Court rules that there was no negligence on the part of the defendants after the plaintiff claimed that she had slipped on some oil outside a petrol station.

 

De Cataldo -v- Petro Gas Group Ltd & Ors

As a result of a slip outside a petrol station, the plaintiff claimed she suffered a serious injury to her left pelvis, hip and sacrum area which had the effect of disabling her for a prolonged period of time from a variety of normal activities, namely, work for about three months, and a host of domestic activities for upwards of three years.

 

 In respect of this latter claim, i.e. her inability to do a variety of domestic chores, she claimed that she required the assistance of a carer or nursing assistant for three years, and she submitted, in these proceedings, a claim for over €73,000 for the cost of employing three carer/nurse assistants sequentially over the time involved. She updated that claim by the provision of further particulars to include the third carer, raising the claim from approximately €69,000 to €73,490.

 

When the proceedings came on for hearing, this claim was abandoned, as also was the claim for €10,175 for a variety of oils and other preparations. When challenged on the making of that claim, the plaintiff’s explanation was that this claim was put in by her solicitor contrary to her instructions. In response to this evidence, Mr. Burns S.C. for the defendants, put to the plaintiff the affidavit of Mr. John Synnott, her solicitor and the exhibit therein, grounding an application by Mr. John Synnott to come off record for the plaintiff.

 

This affidavit and the letter exhibited paint an entirely different picture. Mr. Synnott applied to come off record because he was unwilling to continue acting for the plaintiff because of what he deposed to as the exaggeration by the plaintiff of her claims and, specifically, her claim for €73,490 for nursing assistants, and other incidences where he felt he had been misled by the plaintiff.

 

The Judge went on to comment that the plaintiff’s evidence was wholly unreliable, that he was satisfied, on the balance of probabilities that she had not slipped on oil and that the defendants were not guilty of negligence.

 

The full judgement can be read here:

 

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/dcc176426a3878c980257ad000322b12?OpenDocument

 

S. Major, Lacey Solicitors

IRL High Court ruled that there was negligence on the Defendants’ part due to the absence of a handrail at a set of steps in a restaurant.

 

McDonald -v- Frossway Trading as Bleu & Ors

O’Neill J noted that anyone, lay or expert, who considered the relevant features of the location of the stairs, namely, in a busy city restaurant, in an ambiance where the lighting was relatively low, the rather dark colouring of the stairs, the absence of any clear markings on the nosings of the stairs, the normal noise, hubbub and conviviality that one would expect in a restaurant of this kind late at night, the fact that diners at that time of night would be enjoying themselves and may have consumed some alcohol and the constant movement around the restaurant of patrons and staff; these features would have brought about a realisation there was a high level of risk that a diner late at night would miss their footing on the steps and stumble.

 

The Court ruled that the first and second named defendants could not excuse their failure by saying they engaged an independent expert contractor when the danger posed by the absence of a handrail in this location must have been readily foreseeable to them as experienced restaurateurs. They did not need the advice or assistance of an expert to appreciate such an obvious risk.

 

The full judgement can be read here:

 

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/64a7613b42c3fe8a80257aaf003bb2a7?OpenDocument

 

S.Major

 

Lacey Solicitors

IRL High Court sets out rules for Notices for Particulars in PI Actions

Agnes Armstrong v Sean Moffatt & Ors
IRL High Court set out rules regarding notices for further particulars in personal injury cases, clarifying the extent to which the Civil Liability and Courts Act 2004 has altered practice in this regard.
In his judgement, Hogan J was highly critical of the practice of seeking particulars above and beyond the realms of necessity, describing how the particulars sought in many cases had “reached something of an art form”.
The Judge, in determining appropriate practice regarding this issue, set about analysing each of the particulars requested by the defendants in turn, and applying legal principles stemming from, and also predating the 2004 Act. He began by highlighting the changes enacted by the Civil Liability and Courts Act 2004 regarding pleading in personal injury cases. He outlined that Sections 10 and 13(1) of the 2004 Act outlined what information must be contained in a personal injury summons.
He also highlighted the fact that Section 11 also allows the defendant in a personal injuries action to request the following further information, namely:-
“(a) particulars of any personal injuries action brought by the plaintiff in which the court makes an award or damages,
(b) particulars of any personal injuries action brought by the plaintiff which was withdrawn or settled,
(c) particulars of any injuries sustained or treatment administered to the plaintiff that would have a bearing on the personal injuries to which the personal injuries action relates, and
(d) the name of any persons from whom the plaintiff received such medical treatment…”
In turning to the general principles regarding the criteria for allowing particulars, Hogan J highlighted the judgement by Henchy J. in Cooney v. Browne [1984] I.R. 185, 191 of being of particular relevance, in which it was stated:
“Where particulars are sought for the purposes of delivering a pleading, they should not be ordered unless they can be said to be necessary or desirable to enable the party seeking them to plead, or for some other special reason: see O. 19, r. 6(3). Where the particulars are sought for the purpose of a hearing, they should not be ordered unless they are necessary or desirable for the purpose of a fair hearing….Thus, where the pleading in question is so general or so imprecise that the other side cannot know what case he will have to meet at the trial, he should be entitled such particulars as will inform him of the range of evidence (as distinct from any particular items of evidence) which he will have to deal with at the trial.”
Commenting on this judgement, he stated that particulars are ordered in the interests of fair procedures and to ensure that a litigant will not be surprised by the nature of the case which he has to meet. He noted that the case-law shows that this is essentially the governing principle in all cases where the issue of whether the particulars should be ordered has been considered.
The first request in the defendants’ particulars which came under fire by Mr Justice Hogan was the issue of whether legal expenses insurance had been obtained, about which he stated “The question of legal costs insurance does not even remotely arise from any matter stated in any pleading.”He similarly disallowed queries relating to the time of the accident and whether an accident was called, stating that neither relates to the matters pleaded in the summons. Regarding the request for the identity of witnesses Hogan J did not find a personal injury case as remotely within that category, stating that the request in fact “effectively seeks to elicit evidence rather than clarify the scope of a pleading.” A request by the defendants for a narrative account of the accident was also dismissed as seeking “what amounts to a witness statement from the plaintiff by way of particulars.” The Judge also rejected a call to provide particulars of negligence and breach of duty as being already pleaded, requiring however that the plaintiff clarify her claim in respect of the Occupiers Liability Act 1995.
He similarly regarded a request for particulars of treatment as being irrelevant beyond those pleaded in the summons, questioning the relevance of the identity of the medical advisers or the details of any medication prescribed.
On the issue of a request for information regarding the plaintiff’s prognosis, the Judge rejected these as being already pleaded and stated that inquiries into social welfare and special-damage details were premature
The full judgement can be read here:

http://www.courts.ie/__80256F2B00356A6B.nsf/0/6D5D56C14E47295580257B5000383DE9?Open&Highlight=0,armstrong,~language_en~

S. Major, Lacey Solicitors