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.

Most people do not want to think about making a will. This can be due to a number of factors. However, for most people it is because they can be superstitious or simply do not want to think about their death and what will happen thereafter. These are completely understandable and if you are putting off making a will because you simply do not want to think about the issues surrounding it then you are not alone.

The good news is that making a will is a relatively straight forward process and your solicitor will be there to assist you with any worries or queries that you have. The main disadvantage of not making a will is that your assets may not go to the person or persons whom you want. If you do not make a will then you will be deemed to have died intestate. The consequence of this is that rather than your estate going to the person you want it to go to, it will instead go to your next of kin. The other issue is that a family member will need to be appointed as the administrator of your estate, again this may not be the person that you would have wanted.

If you make a will then you can be assured that all of your assets will go to whomever you want. You can set out in your will whom you want your assets to go to and how you want your estate dealt with after your death. The advantages of a will are that you can also make sure that this is done in the most tax efficient way for the beneficiaries. You can also appoint someone whom you trust to make sure that your estate is administered in accordance with your will and your wishes. This person is known as the executor and they will engage with your solicitor after your death to make sure that your estate is administered as you wished. A valid will becomes all the more important in circumstances where you have a minor child. A valid will permits you to direct whom you would like to be a guardian for your minor child or children in the event that you passed away before they reached adulthood. In addition to these main issues, you can also stipulate in your will how you want your funeral to be carried out and if you wish to be buried or cremated.

If you would like to attend with us to discuss making a new will or indeed updating an old one please do not hesitate to contact us on 043-3346440 or at communications@connellansolicitors.ie

One of the biggest issues for any person currently attempting to build a new house is acquiring the actual land or site upon which the house will be built. We have seen the price of sites increase significantly in certain areas over the past number of years. This is why in most cases people in rural Ireland will try to build on the “family land”.
In theory, transferring a site from a parent to a child should be a simple process. However, there are a number of issues that both the parent and the child need to be aware of. We have attempted to highlight some of these issues in this article.
The vast majority of site transfers between a parent and a child will be voluntary transfers. This means that the parent will not look for any money for the site and will give it to their child as a gift to assist them in building their future home. The child will then construct their house on the property. However, the following are the main issues and items that both the parent and the child should examine prior to formalising the transfer:

1. PLANNING AND ENGINEERING ISSUES – The child will need to have their engineer examine the proposed site to make sure that it has access to the road, utilities and will be a suitable area to construct a house. Their engineer will also take them through the planning process and it may be worth postponing the formal legal transfer of the site until the child’s planning permission has been approved as there will be no point transferring the site if the planning is rejected.

2. MAPPING – The child’s engineer will need to carefully examine the boundaries of the site and prepare a detailed land registry compliant map outlining the site that is to be transferred. This map will be very important as it will highlight the exact boundary of the site that is being transferred to the child.

3. TAXATION – Benjamin Franklin famously stated that “In this world nothing can be said to be certain, except death and taxes”. Unfortunately, this is very true and tax also plays a significant part in voluntary transfers. Tax is probably one of the biggest items that both parties need to be aware of when entering into a voluntary transfer of a site. There are three main taxes to be aware of:
A. STAMP DUTY – Under the tax acts a site is defined as a non-residential property. Accordingly, the child will have to pay Stamp Duty to Revenue at 7.5% of the open market value of the site. As the transfer will be a voluntary one between the parent and the child the child will need to get an auctioneer to prepare a certificate stating what the open market value of the site is. The Stamp Duty payable will be 7.5% of this valuation.
B. CAPITAL ACQUISITIONS TAX (CAT) – A child receiving a gift or inheritance from their parent will have to pay CAT at 33% of the value of the transfer. However, each child has a CAT allowance and can receive a gift/inheritance of up to €335,000.00 from the parent. Accordingly, in most cases a child should not have to pay any CAT on the voluntary transfer of a site.
C. CAPITAL GAINS TAX (CGT) – This is a charge that could potentially impact on the parent. CGT is a tax charged on the “gain” or “profit” that is made on the disposal of an asset. However, no CGT is payable by the parent provided the following criteria are met:
I. The child constructs their principal private residence on the site.
II. The open market value of the site does not exceed €500,000.
III. The overall area of the site cannot exceed 1 acre.

Once all of the above matters are dealt with the parent and the child can then arrange to have the legal documentation executed with their solicitor. As the Law Society of Ireland prohibit the same solicitor from acting for both the parent and the child, each party will need to retain separate solicitors. There are a number of documents that the parent will need to execute to ensure that the transfer is completed. Their solicitor will be able to take them through these documents and explain any questions they have.
Once all of the transfer documentation is executed by the parent, their solicitor will then send all of these documents to the child’s solicitor. The child’s solicitor will then stamp the deed of transfer with Revenue and apply to the Land Registry to have the transfer registered and a new folio opened. This new folio will be the child’s legal “deed” to the property and will be required by the child’s bank if they are getting a mortgage.
Connellan Solicitors LLP have significant experience in dealing with these types of transfers and can assist you with all aspects of the process. If you have any queries regarding this or any other property related matter, please do not hesitate to contact us.

• Please note that this article is prepared for general information purposes only. It is not legal advice and should not be taken as such.

These are common accidents. They can occur anywhere, on a public footpath, in a shop or in a neighbour’s house. However, just because an accident causes injury it does not automatically result in another party being responsible or having to pay compensation. In seeking compensation, negligence has to be established by the plaintiff.

If an accident happens resulting in injury caused by a trip or fall, the owner of the property where the accident took place, may be responsible but that has to be proved on the balance of probability.

Following a slip, trip or fall on someone else’s property and before engaging your solicitor, check out the following:

• Make a note of when the accident occurred, what the date was, the location of the accident etcetera.
• Take pictures of the accident area.
• If the injury requires medical attention get same as soon as possible and keep a record of it.
• Consult your solicitor.

In any subsequent correspondence by your solicitor or in court, evidence of the accident is very important, so collect the evidence at the time of the accident and keep all records of doctor or hospital visits and receipts as they can all be refunded.

ESTABLISHING LIABILITY
This is the crucial point in personal injury claims.

• The owner of the property or an employee must have caused the accident, for example, a cleaner might leave a floor wet thereby causing it to be hazardous.
• The owner of the property or an employee must have known of the dangerous surface but done nothing about it or was careless about it.
• The owner of the property or an employee should have known of the dangerous surface because a “reasonable” person taking care of the property would have discovered and removed or repaired it.

A judge in hearing such cases often applies the ‘Reasonable Man’ test. If, for instance, a person slips on a supermarket floor which had water on it because a cleaner had not properly wiped the floor. If such a shopper noticed the wet floor and continued down the aisle, slipped and was injured, was that the action a Reasonable Man would take? Here a judge might rule that the plaintiff knew there was a risk and walked on anyway. A judge might then either dismiss the claim as the plaintiff took on the risk himself or might rule the plaintiff contributed to the injury by continuing to walk down the aisle knowing the danger.

Establishing liability is the hard part of these cases. The plaintiff must prove that the defendant was negligent and if that is accepted by the court, the claim will most likely be successful.

CONTRIBUTING TO THE ACCIDENT

In almost every slip or trip and fall case, a plaintiff must decide whether their carelessness contributed to the accident:

• Would a careful person have noticed the dangerous spot and avoided it?
• Warning Signs: were there any such signs?
• Were you doing anything that distracted you from paying attention to where you were going, for example looking at your phone?

If considering a court case, listen to the advice of your solicitor and if proceeding estimate the approximate compensation range. Not all cases are High Court, here the costs are much higher so consider the Circuit or even the District Court before issuing your proceedings.

If you have been injured through no fault of your own and would like to discuss matters with us please do not hesitate to contact us.

Accidents often happen on holidays, but it used to be difficult to secure compensation. Some comfort is afforded to families travelling abroad under the Package Holidays (Trade and Travel ) Act 1995 where in S (20) it states that a defendant travel company owes its customers a duty of reasonable skill and care in performing its contract obligations and can be liable if found in breach.
A family brought its three year old on holidays with them to Tenerife on a package holiday purchased from Sunway Travel.
The father injured his hand on a ceiling fan that was fixed too low and complained to reception to no avail. They told him they had no alternative room when he raised the issue again a day later. A few days later he lifted his child up and the fan hit the back of the child’s head requiring stitches.
The father sued but appealed the Circuit Court’s dismissal of his claim. Expert evidence established that the fan was fixed too low and was a hazard and the father had complained twice about this to reception with no success. The hotel had not disclosed that there was in fact another room which they could have moved to thereby avoiding the child’s injury.

The High Court found that there was a clear breach of Sunway’s duty of care to the plaintiff. The father had twice complained about the fan and an accident was therefore foreseeable. If the family had been moved to another room, the accident would not have happened.

The child was awarded €8,500 in damages by the High Court and the father was refunded €3,596 being cost of the holiday.
It might be useful to point out, as an adjunct to the above High Court decision, that if the family had arranged the holiday themselves without any agent, they would not have secured compensation unless they issued proceedings against the hotel in Spain where the level of damages is quite low.

Even where an employer has solid grounds to take disciplinary action against an employee, there are far too many instances of awards made by the Workplace Relations Commission (WRC) against employers for breach of Fair Procedures i.e. failure to conduct a fair investigation of the workplace incident.
Therefore, it is vitally important for employers to ensure any disciplinary investigation into an employee’s action, is conducted fairly and to a high standard. The WRC places a high bar for employers in such cases.

So, how do employers meet the high standard demanded by the WRC in these circumstances ?

Before commencing any investigation the following check-list should be complied with:
a) Who conducts the investigation? It should not be any person involved in the dispute or incident no matter how minor a part they played. Impartiality is critical.
b) The investigation should confine itself to the facts only and without any comment or opinions expressed.
c) All appropriate people involved should be questioned.
d) On the outcome of investigation, make sure a copy of the decision is given to the employee in writing.
e) Give reasonable notice of the Disciplinary Hearing to the employee and be flexible, within reason, to accommodate a date with the employee. Failure to give the employee reasonable time to prepare could prejudice the employer’s case.
f) The Disciplinary Hearing should clearly set out the allegations made against the employee.
g) List of people attending.
h) Have a note taker present.
i) State the disciplinary sanctions (including dismissal) that apply.
j) State in the Notice of Disciplinary Hearing that the employee has a right to be accompanied and/or represented.
k) Obtain a list of any personnel the employee wants to question at the hearing.
l) Any and all relevant documentation should be supplied.
m) If there is any electronic evidence available, it should be included.
n) Inform the employee of the company’s appeal procedure.

These items may appear numerous but to exclude any could be extremely costly for the employer.

If you have any employment related query please do not hesitate to contact us on 043-3346440 or at brendan@connellansolicitors.ie

 

 

Invariably there will always be an inherent risk attached to medical treatment and operations. However, sometimes a medical practitioner can perform below the standard expected of a professional. When this results in an injury, the patient may have a case in medical negligence.
If one is to succeed in a medical negligence claim, they must prove that their treating doctor acted below the standard expected of a professional.
This can only be decided by evidence from expert witnesses who can testify that the treating doctor’s care fell below the accepted professional standard.
Therefore, the first step in any case in medical negligence will be the obtaining of a report from another expert doctor to say that the treatment received was negligent.
Examples of common cases of medical negligence that come before the courts include the failure to diagnose a condition, the failure to refer a patient to a specialist, the making of a late diagnosis or the making of a serious mistake in the course of surgery.

A medical professional may also be found liable for failing to obtain what is referred to as ‘informed consent’ from a patient. A doctor must inform the patient of any possible harmful consequence that may arise from a course of treatment so that the patient can give proper consent to the procedure. Generally a plaintiff will have two years from the date of the negligent act under the Statute of Limitations to bring an action for medical negligence. However this can be extended if a person only finds out at a future date that something was done incorrectly.

If you have any questions regarding medical negligence please do not hesitate to contact our expert team on 0433346440 or at info@connellansolicitors.ie

Most employers and employees alike are aware of the importance of the contract of employment. This is the document which sets out the rights, entitlements, obligations and responsibilities of both the employer and the employee in relation to the employment relationship. For the most part this contract is fairly straight forward and deals with everyday issues such as the place of work, job title, commencement dates, remuneration, annual leave and hours of work to name a few. However, far to often employers can find themselves in an insidious position by having a poorly drafted employment contract or even worse still no contract at all! Under the Terms of Employment (Information) Act, 1994 as amended by S.44 of the National Minimum Wages Act 2000 and S.18 of the Industrial Relations (Amendment) Act 2012 every employer is obliged to provide their employees with a written statement setting out the minimum terms of the employment. While the Act states the item’s which must be included in the “statement” it falls far short of addressing all of the issues surrounding the employment relationship. This is why every prudent employer should go one step further and have a robust and detailed contract of employment for every employee. Far to often it is only when the employer/employee relationship breaks down that the employer will truly realise the importance of the employment contract. While a properly drafted employment contract can be the saving grace for an employer against a disgruntled employee a poorly drafted one can be the noose with which the employer is later hanged if there is a dispute.

Perhaps one of the most important aspects of any employment contract are the notice periods, probationary period, grievance and disciplinary procedures. These tend to be the ones that are of the most importance when an employment relationship breaks down and these are the ones that I will briefly address in this article. Under the Minimum Notice and Terms of Employment Acts 1973 to 2005 all employees are entitled to a minimum period of notice. However, a prudent employer should ensure that he has a detailed notice period section provided for in the contract of employment. At a minimum he should ensure that the notice period complies with these Acts. However, a prudent employer will ensure that the notice clause in the contract also deals with other aspects such as payment in lieu of notice, garden leave etcetera. This will ensure that there will be no ambiguity in relation to the notice period and it will hopefully prevent an employee from later taking a claim in relation to inadequate/unreasonable notice of termination.

Another important aspect of the employment contract is the treatment of new employees who are under a probationary period. There appears to be a common misconception amongst most employers that because an employee is on a probationary period that the same rules do not apply to them. This is a fallacy which can unfortunately entrap unsuspecting employers. The probationary period is integral to every employment relationship. It’s the “bedding in period” and it is the time when the employer and employee get to familiarise and assess their new surroundings and their suitability to one another. The probationary period should be no more than 1 year. However, generally it would last for 6 months. While an employee who is still on probation may not be able to take a claim for unfair dismissals as they would generally not have the required service under the Unfair Dismissals Act 1977, they are still entitled to fair procedures. This appears to be a situation that most employers are unaware of and one which tends to catch out some employers. In order to prevent any potential claims an employer should ensure that they have a clear and detailed probationary period clause in their contract of employment. This clause should clearly set out that while on the probationary period the general terms of the substantive contract, including the grievance and disciplinary procedures do not apply to the employee who is on probation. It should also set out clearly what notice and procedures should be followed when terminating the employment of an employee who is still on probation. The most important thing to remember in this situation is that fair procedures are afforded to the employee. This will help prevent the employee from later taking a claim.

The final aspect of the employment contract that is to be discussed in this article is the grievance and disciplinary procedures. A grievance and disciplinary procedure should at a minimum be included in the employment contract. However, it may be more prudent to have a far more detailed one in a separate policy which is referred to in the contract. The grievance procedure is extremely important as it gives the employee a way to resolve matters of concern to them which affect their employment. If there is no grievance procedure in place then the disgruntled employee could claim that they had no options open to them to resolve their issues. If followed correctly and adhered to by the employer it should also help prevent a claim for unfair dismissals if the employment relationship breaks down.

The above is a guide to the main aspects of an employment contract which employers and employees alike should review carefully in every employment contract. Please note that the information provided above is for information purposes only and should not be regarded or relied upon as legal advice.