A delivery man was making a delivery to a customer’s house. He parked his van close to the wall of the customer’s house and went around the other side to get the parcel. On doing so, he took a step backwards and his right foot went into a pothole on the road. The pothole was about eight inches in depth and about two feet wide. He stumbled but did not fall.

The plaintiff said he experienced immediate pain to his right knee, and he was unable to continue working that day. The pain continued and he was not able to partake in activities. After enduring the pain for a while, he had an MRI scan done which showed a significant injury to his knee.

Medical evidence showed he had post-exertion pain in the anterior aspect of his right knee. Initially the doctor recommended injections to deal with the pain but later changed that opinion and suggested instead the plaintiff undergo arthroscopy surgery.

An engineer for the plaintiff said several repairs had been done to the pothole but these were deficient to fix the problem. It was conceded that the pothole would be visible to pedestrians but not a person exiting a car.

The court was satisfied that the responsibility for the road lay with the County Council and the repairs to the pothole by the council were clearly insufficient. It followed therefore that the council, or its agents were negligent in failing to carry out proper repairs to the pothole.

Having decided on the party responsible for the accident, the court then considered the amount of damages that the plaintiff was entitled to.

The MRI evidence also established that the plaintiff had suffered a tear of the lateral meniscus in his knee.  The court was satisfied with the plaintiff consultant’s reasoning for changing his opinion on the necessity for surgery. The court rejected the suggestion, made in cross-examination, that the consultant had recommended surgery to “puff up” the plaintiff’s case.

Having considered all the evidence, the court awarded €45,000 for pain and suffering to date with €15,000 for future pain and suffering. The court also awarded €5,000 for the costs of the procedure and €4,000 for the plaintiff’s inability to work for four weeks post-surgery amounting to a total of €69,000.

Hickey v. Tipperary County Council [2023] IEHC 362.

Slip, trip, and fall cases are a common form of injury in personal injury claims. The owners of property, whether private, commercial, or State owned, are required by law to take reasonable steps to avoid such accidents happening on their property. It is becoming more common nowadays that the courts are dismissing false or exaggerated claims, so it is important that people taking such cases have had genuine accidents and that they can establish both that the property owner was negligent and that such negligence was the cause of the accident.

Examples of claims that would fail are:

• At the time of the accident the claimant was trespassing on the property. This is where the claimant had no right to be on the property when the accident occurred.
• Where the claimant caused the injury through their own dangerous or reckless actions.
• Where the claimant ignored warnings of the property being dangerous.
• Where there was clearly a dangerous building or part of a building in dangerous condition which the claimant ignored.

A general rule applies to property owners that they owe a duty of care to lawful visitors to maintain their premises in a clean and safe condition. This applies very much in the workplace so that employers, whether they own the property or lease it, have a duty of care to ensure the building is safe for employees to work in.

NEGLIGENCE  

A claimant in a personal injury case must not only prove the injury sustained but must prove that the property owner was negligent in the management of the property. An example of this would be a slip on a supermarket floor where a person sustains an injury requiring hospital treatment and loss of earnings while out of work. The mere fact that the person slipped on the shop floor is not enough to win the case, the claimant must establish that the shopkeeper was negligent in maintaining the safety of the shop floor. If the shopkeeper can show that the shopping aisles are inspected at regular intervals throughout the day and the spillage occurred between these times, a court could rule that it would be unreasonable to impose a strict duty of care as shopkeepers cannot be expected to predict a slippage that usually happens suddenly.  A court will look at whether the accident could have been avoided and if the court believes the defendant did everything reasonably expected of them to prevent accidents, then a court is unlikely to find against the property owner.

RECORDING THE ACCIDENT

When an accident occurs in a place of work or shopping centre or wherever else, a note of the incident should be recorded in the event you are going to follow it up with a claim. Keep all records, names of witnesses, dates, and receipts from visiting the doctor. It is always very helpful on the day to take a picture, if possible, of where the accident occurred. Keep all these and give to your solicitor.

If you wish to speak to a solicitor about any aspect of a personal injury case please do not hesitate to contact us on 0433346440 or at brendan@connellansolicitors.ie

Connellan Solicitors LLP would like to congratulate our former Partner, Michael Connellan Junior, who has been appointed as a District Court Judge by the Minister for Justice. Michael was a partner in the firm for a number of years and is now following in the footsteps of his father who was also a District Court Judge.

It’s a very proud moment for Michael, Ann and his family and indeed all in Connellan Solicitors LLP. Two of our former partners have now gone on to be District Court Judges. Michael will be a valued and diligent member of the bench.

Connellan Solicitors LLP would like to share the following tips on how to speed up your house sale. Please note that the below guide was prepared by the Law Society of Ireland.

TO SPEED UP YOUR HOUSE SALE

Contact your solicitor as soon as possible. Your solicitor will need to get your title deeds immediately in order to prepare a contract for the sale of your house and will also need to take full instructions from you on the details of the sale. There are several pieces of information and documentation that your solicitor will need and you should start getting them together now.

YOU WILL NEED TO GET THE FOLLOWING:

1. Details of where your title documents are (if your title deeds are with a bank, provide the name of the bank and the account number).
2. Local Property Tax printout showing local property tax paid to current year end (www.revenue.ie).
3. Receipt or Certificate of Discharge showing that the Household Charge has been discharged (www.householdcharge.ie).
4. Certificate of Exemption or Discharge for NPPR (applied from 2009 to 2013) (www.nppr.ie).
5. Details of your water and drainage supply.
6. If you have a septic tank on the property, evidence of its registration (www.protectourwater.ie).
7. If you are or ever have been married, a copy of your state marriage or civil partnership certificate (and copy of separation agreement or divorce, if applicable).
8. BER Certificate showing the energy rating on you home.
9. Details of any building work you have done with copies of any planning permissions and architects’ certificates of compliance.
10. If your property is in a managed development, contact details for the management company/managing agents, and receipts for service charges.
11. If the property is let, copy letting agreement.
12. Details of any contents included in sale.
13. PPS Number(s) – needed for proof of identity.
14. Photographic identification such as passport(s).
15. Utility bill / bank statement (within the last 3 months) to prove your address.

If you would like to get a free no obligation quote regarding the sale or purchase of any property please contact brendan@connellansolicitors.ie or contact us on 043-3346440

Unfortunately, over the past number of months anyone who has a mortgage will have noticed that the interest rates have increased time and time again. Its also likely that we have not seen the end of these interest rate hikes. This is why it is so important that anyone who has a mortgage examines the market to ensure that they are on the best possible rate. There are various types of mortgages being offered by various lenders. Some people have decided to opt for variable rate mortgages and others have decided to opt for fixed rate mortgages. The advantages of a fixed rate mortgage is that you have a fixed monthly payment for the duration of the “fixed rate period”. The duration of the fixed rate can vary but its typically for around 5 years. Once the fixed rate is over you can shop around with different banks and go with whichever bank is offering the best rate at that particular time.

The switching process from one bank to the other is relatively straight forward. However, there are certain things that you will need to do if you are thinking of switching your mortgage:

 

1. If you are thinking of switching your current mortgage to a new mortgage provider then it is extremely important to speak to your solicitor as early as possible. This is because when your new mortgage provider issues the mortgage paperwork to your solicitor your solicitor will need to certify the legal title to the bank. In order to do this your solicitor will need the physical title deeds from your bank. It is currently taking most banks around 4 – 6 weeks to issue title deeds to the solicitor. Therefore, if you are thinking of switching mortgage providers the first thing you should do is to contact your solicitor and sign an authority authorising your current bank to send the title deeds to the solicitor. If you do this at an early stage it will cut out delays later in the process.
2. Shop around and speak to various banks/mortgage advisors or financial advisors to ensure that you are on an interest rate and mortgage that suits the needs of you and your family best.
3. Once your new mortgage has been approved the bank will send the full legal pack to your solicitor. You can then meet with your solicitor and execute all of the security documentation provided everything is in order with the title documents. You will also need to ensure that any requirements that the bank have are met. These typically include getting an up-to-date valuation done on your property and ensuring that you have adequate life and home insurance.
4. Once all of the above is taken care of your solicitor will request that your new mortgage provider releases the mortgage funds. Once the funds are received by your solicitor they will ensure that the new mortgage is registered over your property and that the old mortgage is redeemed in full. They will also ensure that the old mortgage is removed/cancelled from your title deeds.
5. When all of the above is done your solicitor will then return all of the title documents to your new lender who will retain them until the new mortgage has been redeemed.

Should you have any questions in relation to new or existing mortgages please do not hesitate to contact us.

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