CLAIM DENIED BECAUSE OF OPPORTUNISM

A plaintiff was involved in a minor road traffic accident at the traffic lights on the Stillorgan Dual Carriageway near the Radisson Hotel. The plaintiff claimed that she suffered whiplash injuries when the defendant’s Land Rover car collided with the rear of her Audi car while she was stationary at the traffic lights. In the €60,000 claim, the plaintiff alleged that she had been shocked and distressed by the collision. She told the court that she had no intention of taking a case against the defendant until she was advised by her doctor that she had suffered whiplash injuries to her neck and shoulders and required medication for pain.

The defendant, in his defense, told the court that his car had rolled forward a few yards into the defendant’s car causing damage to her bumper for which he paid her just under €1,000 for a replacement bumper.  Photographs were produced in court taken by a private investigator showing the plaintiff carrying out activities without showing any sign of difficulty, these included carrying shopping bags and easily getting into and out of her car. On the photos being produced, the plaintiff agreed that the person in the pictures was indeed her.

The defendant, having paid for the replacement bumper, was flabbergasted when the summons was served on him.

The judge found the evidence of the defendant was detailed and credible and that all the evidence demonstrated that the accident was minor. The judge further stated that the case smacked of opportunism in what looked like an overstated injury following a minor accident.

The case was dismissed with costs awarded to the defendant.

This case shows the risks in taking these types of accident cases to court. The plaintiff in this case, instead of being awarded money for whatever injury she actually incurred, was left with no award and a court order to pay the legal costs of both sides in the case which will run to several thousand Euros.

Collins v Tansey Dublin Circuit Court 12 May 2023.

Notice for Particulars: What you are Entitled to and What you are Not.

In any action where you are unsure of the case that the other party is going to make at trial, you may serve your opponent with a ‘Notice for Particulars’.

This is a list of questions that arise from your opponent’s legal pleadings which they are required to reply to.

Though a useful piece of artillery in your legal armory, over time the Notice for Particulars has evolved into a tactic to frustrate an opponent by delivering pages of wide-ranging questions to illicit information and evidence one is otherwise not entitled to. Especially in personal injuries actions, Defendants have adopted the practice of serving pages of standardised Notice for Particulars. Such tactics are considered to be oppressive and have received much judicial criticism over the years.

Here are three of the key principles that apply to Notice for Particulars:

• The particulars are limited to matters in the pleadings. In personal injuries actions, this means the other side can only ask you about issues raised in your Personal Injuries Summons or Defence.
• The particulars are only meant to clarify issues between the parties so that they know the case they have to meet. If a party knows the broad outline of the case they are to meet, further particulars will not be necessary.
• Particulars should also not be given when the other party is seeking to find out details of the evidence that is to be relied on at trial.

Examples of regular particulars asked for (but which should not be replied to) include requests for copies of documents or details of witnesses.

Even though the Courts have regularly stated that such items are outside the scope of particulars, they are still regularly asked for by practitioners in personal injuries actions.

Despite this judicial criticism, this practice does not look like it will reform any time soon.

Should you have any questions regarding any litigation matter please do not hesitate to call or email us on 0433346440 or brendan@connellansolicitors.ie

 

MEDICAL NEGLIGENCE

EPILEPSY DRUG WRONGLY PRESCRIBED TO PREGNANT WOMAN

Pregnancy can be risky but when the woman carrying the baby is an epileptic, the risks can be huge.  A recent case saw the High Court award substantial damages to two brothers, aged thirteen and nine, who suffered from autism brought about by the side effects of an epileptic drug prescribed for their mother by her neurologist both before and during her pregnancy.

Their mother had developed epilepsy at the age of twelve and as the disease progressed, her family had referred her to a consultant neurologist, Dr. Raymond Murphy, who she continued to see for treatment from the age of twenty.  During a fourteen-year period of seeing Dr. Murphy, she was mostly prescribed the drug Epilim along with some other drugs on occasions.

It was stated in evidence that Dr. Murphy had warned her that if she became pregnant, there was a risk of the fetus developing Spina Bifida but this could be controlled by taking other medication. He did not warn her of the autism risks associated with Epilim which he continued to prescribe.   She had her first son, Jack, in 2007 and her second boy, Tom, the following year in 2008, but Dr. Murphy continued to prescribe Epilim despite the concerns other medical professionals had as to its side effects in pregnancy.

Her son, Jack, was unfortunately diagnosed with autism at the age of three and suffered from marked speech and language difficulties while her other son, Tom, was also diagnosed with autism although a less severe variety than his older brother.

The mother’s counsel outlined to the High Court that if she had been properly warned about the known risks of autism from taking Epilim while pregnant, she would have opted for a completely different treatment.  The boys had failed several developmental tests and would require continuous support and therapy from their parents and health workers into the future.

Liability was conceded by Dr. Murphy’s side and the court approved a settlement on their behalf for €15 million Euro by way of staged payments to the two boys and their parents.

Jack Clarke & Tom Clarke (suing by their mother Elizabeth Clarke) v Dr. Raymond Murphy [2023] IEHC.

CHALLENGE TO NEW GUIDELINES DISMISSED BY HIGH COURT; LOWER DAMAGES ARE HERE TO STAY

High level awards were, in recent years, feeding into higher premiums and the Government was under pressure to introduce changes.  In March 2021 the Judicial Council, passed the new judicial guidelines under the Judicial Council Act 2019.  These provided for much lower awards in PI cases and one claimant who had been told her case was worth up to € 34,000, but who was only assessed at € 3,000 by PIAB, challenged the new guidelines and related legislation. She applied to PIAB before the new rules took effect but was assessed under the new regime.

The plaintiff complained that the 2019 Act interfered with judicial independence and that the guidelines should not be retrospectively applied to her. She claimed her case should be assessed under the old rules as she applied to PIAB some years before the new and reduced awards came into force.

The court looked at section 90 of the 2019 Act and found that the court must consider the level of damages awarded in the State and other jurisdictions, principles for assessment and the need to promote consistency in the level of compensation for personal injury claims.

As for the issue of independence of the judges, the court held that existing legislation allowed a court to depart from the guidelines where reasons were given by the judge and this did not represent any substantial change to the current system under the Book of Quantum where it was desirable that a court should refer to its provisions.

As to the plaintiff’s case being undermined by retrospective rules, the court found the plaintiff had the right to have damages assessed in accordance with the law applicable at the time of assessment but did not have a right to any specific sum contained in the Book of Quantum.  The reduction in awards, which was in keeping with public policy, did not amount to an “unjust attack” on her rights as she had claimed.

An application to PIAB was different to an assessment, and that could only be arrived at following the furnishing of all relevant information to the PIAB assessor. In this case the claimant had delayed sending all her X-rays to PIAB.

The court concluded that the guidelines were now valid as a matter of law and it found that PIAB had correctly applied the new guidelines to the claimant’s case. Her application for judicial review of the new guidelines was therefore refused.

Delaney v the Personal Injuries Assessment Board & Others [2022] IEHC 321.

 

ELDERLY LADY MADE WARD OF COURT DESPITE HAVING SIGNED AN ENDURING POWER OF ATTORNEY

The Enduring Power of Attorney (EPA) was introduced several years ago and allows persons to execute an EPA in case they become mentally incapable in later years.

An interesting recent High Court case allowed an elderly lady to be admitted in to Wardship despite her having signed an EPA some years earlier giving her son control over her financial affairs.

She suffered a head injury in 2017 and her short-term memory became very poor afterwards. She was also diagnosed with dementia. One of her sons, ET, agreed to move in with her to care for her.  However, the other siblings became concerned about the level of care he was providing her.  They claimed she was often left alone overnight and that both she and her house were left in an unkempt and dirty state.  They said that ET had taken over control of her life and prevented her from seeing other family members or neighbours, using Covid as an excuse.

In January 2022 they arranged for a HSE inspection where the visiting officials reported the gate locked and their elderly mother confused and unclean.  They proposed further inspections, but ET cancelled those.

More importantly, the family members discovered a sum of € 87,000 had been taken out of their mother’s account by ET, within a 15-month period, without any explanation.   It was also stated in evidence that ET had suffered a judgement against him for a seven-figure sum. In October 2019, ET had brought his mother out to execute an EPA with him as the sole Attorney dealing only with her financial affairs, but this was never formally registered.

In February 2022, three of her adult children made an application to the High Court to admit her to wardship but this was opposed by ET.  He argued that the earlier 2019 EPA was sufficient to meet her needs and that his mother wished him to take control of her financial affairs and had allowed him take money when he wanted.   He had attempted to register the EPA with the Wards of Court office, but this was refused because of the family application for Wardship.

The judge found the mother’s financial affairs were not being properly managed at all and she noted that while the son admitted taking money from her bank account, he never had accounted or explained how these monies were being used.

The court was satisfied that ET was not properly caring for his mother, never brought her to her GP for routine check-ups and had not maintained her pacemaker.  He had apparently prevented his other siblings from seeing his mother despite their clear desire to do so.

The court held the son’s outstanding application for registration of the EPA did not prevent it from making a Wardship order.  Assessing the medical evidence and the urgency of the situation, the court held that it would not adjourn the Wardship application to allow the registration of the EPA to take place.

The elderly lady was then admitted in to Wardship, and the General solicitor was appointed a committee of her person and estate.    The court was adamant that ET should not be part of her committee due to the very serious deficits in his mother’s care to include her financial affairs.

The ruling suggests that if an earlier EPA is not being properly managed by those entrusted, the courts may well intervene and bring the vulnerable party affected directly in to Wardship.

In the matter of Mrs. AB [2022} IEHC 448.

 

If you would like to discuss any aspect of Wardship’s or EPA’s please do not hesitate to contact Brendan Noone of our office on 043-3346440 or at brendan@connellansolicitors.ie

1.  An auctioneer /estate agent is usually your first call when selling your property. However, you could potentially get a purchaser for your house very soon after the for sale sign goes up. Accordingly, it is just as important to inform your solicitor at an early stage that you intend to sell your property. Your solicitor will need to have access to the title deeds to your property in order to prepare the contract. If you have a mortgage on your property it could take up to 4 – 5 weeks to get the title deeds from the bank. Accordingly, if you engage with your solicitor at an early stage it will mean that they can issue the contract immediately as soon as a purchaser is found. This will significantly speed up the sale process if you are not waiting for the bank to release the deeds after you accept a bid from the purchaser.
2. If you built an extension some years back, you would need planning permission or an architect’s certificate that the works are exempt. Talk to your solicitor about any such works as he can then provide for this in the contract.  Do not get caught halfway through the whole process with some works or an extension that is undocumented.
3. Agree as soon as you can about what fittings and contents are included in the sale and what you plan to remove or sell to your purchaser. Generally speaking, fixtures such as fireplaces, stoves, and cookers generally belong to the property. Fittings like curtains, carpets, TV cabinets etc may be removed by the owner or, more usually, offered to the purchaser for a reasonable sum. It is advisable at the earliest stage to agree and clarify all this with the purchaser.
4. Contracts for sale, once signed by all parties and once the relevant deposit is paid, are legally binding, but not if the purchaser has inserted a “subject to loan” clause. Usually, these clauses expire in a few weeks, on receipt of loan approval and only then is there an unconditional contract.
5. Typically, your principal private residence will be exempt from Capital Gains Tax (CGT), but your solicitor should be briefed if any part of the house, say the garage or a small extension, has been used for business for some time as the Revenue may then reduce the full CGT relief somewhat.
6. You should try to ensure that you have receipts for all property taxes, service charges (if applicable) etc. Having all of these documents at an early stage will help ensure that the sale is completed as expeditiously as possible.
7. If the property is your family home, you will be asked to provide your solicitor with your marriage certificate or, where applicable, your Divorce Decree as well as he needs these to prepare the statutory declarations you will be signing to confirm the property is indeed your own family home.
8.  As well as signing various completion documents, to include the deed of transfer itself, do not forget to leave with your solicitor all keys to the house along with fobs or codes to any gates or other doors.

An expert witness is a person who has a recognised, specialist knowledge, a skill or experience in a particular area, such as doctors, dentists, engineers but not necessarily confined to professionals as they can be experienced motor engineers, mechanics, plumbers etc.

Experts are usually asked for a written opinion which may not necessarily be used in a court case. The party seeking the opinion may decide, before or during the hearing not to actually use the opinion.

It is important to note that the expert witness has no link or association with any of the parties in the case. They are independent and are required to give an unbiased opinion. It is incorrect to believe that an expert witness is ‘on the side’ of the party calling and paying their fee. The essential purpose of the expert’s opinion is to assist the court in their deliberation of the matters being argued by the litigants.

Another purpose of calling expert witnesses in court cases is to assist the judge on subjects that might be outside the judge’s own field of knowledge or understanding. For instance, where a structure collapsed and caused damage and or injury, an expert could assist the court in giving their opinion on whether the structure was built in a proper and safe way.

The expert should confine their opinion entirely to matters within their own knowledge and not speculate.

Experts should be informed and up to date on their subject matter or field of expertise otherwise their evidence might be easily rebutted.

In the past this injury did not feature much in personal injury cases but, in recent years, the courts have had more experience in this area and greater access to medical experts to help them identify such a condition arising from accident injuries.

One aspect the courts must consider is that emotional distress can be slow in recovery.

The condition of emotional stress can arise from an accident or witnessing a traumatic accident or from medical negligence.

The condition can be manifested by:

• Post-traumatic stress disorder (PTSD)
• Depression
• Panic attacks
• Adjustment disorders
• Severe anxiety

The Court of Appeal this year considered a case where a woman suffered PTSD having witnessed a horrific road traffic accident where she saw the partially decapitated body of a motorist who had crashed head on into a bus. The insurance company argued that her psychiatric injuries did not give rise to any cause of action, and she was not owed any duty of care. They also claimed that the plaintiff was only a secondary and not a primary victim of the accident. The Court of Appeal found in favour of the woman and held she was indeed a primary victim as her car had been struck by debris from the crash. The court found she was at risk of foreseeable physical injury and therefore a participant in the accident although on the periphery of it.

The critical evidence in these cases, whether PTSD or the other categories, is obtaining a clinical diagnosis. This involves undergoing a review by a consultant psychiatrist who reviews all the medical records, interviews the patient and forms an opinion. This kind of injury will require legal advice at an early stage so all the necessary steps can be taken correctly to establish and document your claim, so early contact with your solicitor is essential.

The Court of Appeal recently ruled that the use of CCTV security footage to investigate an employee discipline issue was unlawful since the footage was collected and processed solely for the purpose of security. It was held that the difference in purpose was in breach of the Data Protection Act 1988 which requires data processors to notify all data subjects about the specified purpose for which that data was collected.

In this case, the employee worked at a hospice in Dublin. In 2015 an ISIS slogan was found carved into a table in the staff canteen a week after a terror incident in Paris. There was CCTV outside the canteen and staff members could access the canteen only using an electronic fob. The hospice reviewed the CCTV footage and saw that one employee entered the canteen on several occasions over three days. It appeared the employee was taking several long unauthorized breaks during the day. He was sanctioned and during an interview he admitted taking extended breaks.
In its final report, the Hospice looked at both the CCTV and fob access records. They explained to their employee that they were accessing all this information solely to investigate all his unauthorised breaks and not in connection with the ISIS graffiti. The employee then complained to the Data Protection Commission claiming the hospice policy on CCTV indicated its use for security purposes only and therefore its use for disciplinary reasons was unlawful as there was no security aspect in that investigation. The Commission rejected this claim and held that the use of CCTV footage in a disciplinary setting did not constitute a different purpose.

This finding was appealed to the Circuit and High Court which allowed the appeal. The hospice then appealed to the Court of Appeal where Judge Noonan laid emphasis on section 2 of the Data Protection Act which states that data “shall not be further processed in a matter incompatible with the specified purpose.”
The Court of appeal held that the hospice was, in effect, conducting two investigations one a security issue and the other disciplinary. The latter investigation could hardly be said to be for the purpose of security. The court considered the data used for the disciplinary issue was for a purpose utterly different to the specified one of security. There was no evidence to suggest the unauthorised canteen breaks taken by the employee constituted security issues in themselves. The court concluded that the principle of notification of the purpose of data collection was central to its findings. The data subject (the person caught on TV) must be made aware of the purpose of processing at or before the data is obtained.

In this case, the employee was never informed that CCTV would be used for disciplinary purposes and so it was used for purposes other than the specified purposes and was therefore unlawful. The appeal was dismissed.
Doolin v The Data Protection Commissioner [2022] IECA

A man has had his award for damages in a case reduced by over €70,000 as a result of the High Court’s finding that he was 80% to blame for the accident occurring.

In the case of Powney v Bovale Constructions Ltd the plaintiff suffered serious injuries to his hand when he tried to enter an apartment complex while carrying an empty glass fish tank.

His friend was holding the door open for him as he entered the complex while holding the tank. However, his friend became distracted and let go of the door just as the man entered, at which point it slammed into the fish tank causing it to shatter in the man’s hands.

The injuries were serious, impairing the use of his hand and leaving him with a large scar. He was required to get surgery to restore some of its functionality.

The court heard evidence that the door had been broken for some time. The spring mechanism was faulty which resulted in it slamming shut when ajar.

However, the plaintiff was quite frank in his evidence that he was aware at the time that the door was faulty, having visited the apartment complex many times.

The court held that the plaintiff had chosen to carry out a dangerous manoeuvre by carrying the glass fish tank through a faulty door in circumstances where he was aware that there was a risk of injury. As such liability should be apportioned between both parties as they had both contributed towards the accident.

The court held that the management company was 20% to blame for the incident and Mr Powney 80% at fault.

The decision meant that Mr Powney only recouped 20% of the damages he had been awarded, leaving him with a little over €15,000 as compensation for his serious injuries.
Powney v Bovale Constructions Ltd [2017] IEHC 441.