On the 21^st November 2005, the Plaintiff was involved in an accident at work.  During the course of working for the Defendants, he fell from a horse that he was training in.  The Plaintiff was instructed by the first named Defendant to ride the horse past the residence belonging to the Defendants.  The horse was spooked, jumped a metal gate and subsequently fell on top of the Plaintiff.  He suffered severe personal injuries, in particular to his right arm, which effectively ended his riding career.

The court looked at the statutory provisions contained in the Safety, Health and Welfare at Work Act, 2005 and the duty of care that is owed by an employer to an employee and in particular on how to avoid an accident at work.  Of issue in this case was the direction as to how the work was to be carried out – what instruction was given to the Plaintiff and what precautions were put in place.  The court stated that the aim of the provisions of the Act of 2005 must be to make a hazardous task as safe as it can reasonably and practicably be made.  The court focused on the nature of the precautions that were required to be taken to avoid an accident at work and, in particular, the appropriateness of the instruction given by the Defendants, as employers, to the Plaintiff employee.

Of note in this case is the fact that on the Friday before the accident occurred, the horse was spooked or frightened by something as he was being lead past the same spot of the accident, the Defendants’ residence.  The court accepted and this was important in relation to the liability of the Defendant for the personal injuries sustained by the Plaintiff, was that the horse had a bad experience that was very likely to have been implanted in his mind from the previous Friday.  Therefore the direction by the first named Defendant for the Plaintiff to ride the horse past the obstacle where the horse had previously been spooked by did not fulfil the duty of care owed to the Plaintiff by his employers, the Defendants.  The Defendants put no precautions in place to avoid the accident at work, such as another person leading the horse on the ground and to ensure the safety of the Plaintiff.

The court also assessed the question of the contributory negligence of the Plaintiff.  Under section 13(1)(a) of the Act of 2005 there is a duty on an employee while at work to protect his safety, health and welfare.  The employee is not entitled to completely surrender his or her welfare while at work to an employer.  The court stated that the Plaintiff still had a discretion as to how to proceed with the horse past the obstacle.  The court assessed his contributory negligence at 30%.  This reduced the level of culpability of the Defendants for the accident at work and it also reduced the damages awarded to Mr. Quinn by 30% to €126,410.

By Ciara Bannerman BL for and on behalf of My Case Solicitors

The first named Defendant alleged that the accident at work was caused by the negligence of the second named Defendant who was responsible for the state of the vessel and in particular was obliged to ensure that the containers within the hold were properly and carefully stacked.  Whereas the second named Defendant claimed that the Plaintiff should never have been put in proximity to containers that were being loaded within the hold of the Coastal Isle nor should he have been standing on a container next to one that was being unloaded.

The containers on the Coastal Isle on which the Plaintiff was loading were stacked using a cone stacking system that linked the containers within the hold of the vessel.  The court heard evidence from Kennett Scott, a crane driver also employed by the first named Defendant, that the container he was loading into the hold of the vessel nudged off the container on which the Plaintiff was standing, causing the container on which he was standing to collapse into the container below.  This is when the Plaintiff sustained the personal injuries.  The court found that had the containers been secured properly, the nudge from container being loaded by the crane would have only caused a noise or a slight movement and would not have resulted in the container collapsing into the one below.  The court was satisfied that the cause of this accident was either a missing or worn down cone from the stacking system.  The negligence was due to a want of care in an unknown member of the crew of the Coastal Isle operated by the second named Defendant.  Liability for the Plaintiff’s accident at work and the personal injuries sustained attached to the second named Defendant.

An award of damages for the Plaintiff in his personal injury claim was agreed among the parties at €200,000.

By Ciara Bannerman BL for and on behalf of MyCase Solicitors

The facts of the case are important to the issues that the court was faced with in the Plaintiff’s personal injury claim.  The Plaintiff was travelling on a motorcycle down the Leopardstown Road.  He continued onto a major roundabout where some kind of altercation took place between the Plaintiff and the First Named Defendant, Mr. Olas.  It was alleged that the Plaintiff had to take some kind of evasive action as a result of Mr. Olas’s driving.  Both made rude gestures to each other, but exited at different points on the roundabout and continued to travel on their respective journeys home.

The Plaintiff then made the decision to turn back and seek out Mr. Olas who was now travelling along the single lane of the Leopardstown Road.  The oncoming traffic had two lanes.  The single lane was relatively narrow and Mr. Olas was driving at approximately 40kph.  The Plaintiff overtook a number of cars and drove up alongside Mr. Olas’s car, keeping a hold of the bikes steering wheel with his right hand and gesticulating at Mr. Olas with his left hand.  It was alleged that Mr. Carr also then banged on the wing mirror and the driver’s window of Mr. Olas’s car.  The Plaintiff denied that this in fact occurred.  The First Named Defendant’s car then swerved to the right, which forced the Plaintiff to swerve and lose control of the motorcycle and it spun out of control.  The Plaintiff and his motorcycle crashed into the passenger side of the vehicle that was being driven on the opposite side of the road by the second named Defendant, Ms. Jennifer Doran.  The Plaintiff suffered serious injuries as a result of the accident.  A claim for compensation was brought by Mr. Carr against the two defendants, the other road users who were involved in the accident for the personal injuries suffered as a result.

The Court had a number of factors to examine in order to determine what or who was responsible for the accident and the personal injuries.  Judge Hogan felt that it was quite likely that the wheels of the Plaintiff’s motorcycle were travelling just over the continuous white line.  He also accepted the evidence of a number of witnesses who said that the Plaintiff was gesticulating at the First Named Defendant at the time of the accident and therefore couldn’t possibly have kept a proper look out.

The Court also accepted the evidence of several witnesses, including the two defendants that the Plaintiff had banged on the First Named Defendant’s car window and also that he had attempted to wrench back the wing mirror on the driver’s side of Mr. Olas’s car.

Another fact that was accepted was the fact that the First Named Defendant’s car swerved to the right in the direction of the middle of the road.  This was the proximate cause of the accident.

The first crucial question that the Court had to determine was whether Mr. Olas swerved deliberately, therefore being responsible for the personal injuries and in turn being liable in the claim for compensation.  Mr. Olas stated in evidence that the swerve was an instinctive reaction to Mr. Carr banging on the window.  Expert evidence was given to support this and that the instinctive reaction would be to move back and to the left from the oncoming blow.  By moving in this fashion, the First Named Defendant was more likely to move the car to the right.  Therefore Judge Hogan accepted the First Named Defendant’s evidence.

The Court then had to examine whether Mr. Olas was liable in negligence; did Mr. Olas owe the Plaintiff a duty of care and if so, did he breach this duty resulting in Mr. Carr suffering serious personal injuries?  The Court was guided by the principles laid down by the Supreme Court’s decision in McComiskey v McDermott [1974] I.R. 75.  Judge Hogan applied the principles as laid down by the Supreme Court in the McComiskey case to the instant case.  He stated that the duty owed by Mr. Olas to Mr. Carr was to drive as carefully as a reasonably competent driver would have driven in the circumstances of an emergency which was not of his creation, making all due allowance for the sudden and unexpected nature of that emergency and the fact that Mr. Olas was required to react in a matter of split seconds. There was no suggestion that Mr. Olas was driving at an excessive speed or not keeping a proper look out.  Judge Hogan could therefore find no negligence on the part of Mr. Olas and could not hold him liable for the Plaintiff’s claim for compensation.  All that Mr. Olas did was swerve suddenly and this was the product of an instinctive reaction on his part.

In relation to the Second Named Defendant, Ms. Doran, the Court found that she was completely blameless for the accident.  Despite swerving into the far lane away from the motorcycle, she could not stop the Plaintiff and his motorcycle from colliding with her car.  Therefore Ms. Doran could not be held liable for the accident, in negligence or otherwise and again could not be liable for the Plaintiff’s personal injury claim.

Judge Hogan, in dismissing the Plaintiff’s claim for compensation against both Defendants, came to the conclusion that there was no evidence of negligence on the part of the either the Defendants and therefore the Plaintiff’s claim for compensation could not succeed.

By Ciara Bannerman BL for and on behalf of MyCase Solicitors

Section 34(1) of the Act provides:-

“Where, in any action brought by one person in respect of a wrong committed by any other person, it is proved that the damage suffered by the plaintiff was caused partly by the negligence or want of care of the plaintiff…….and partly by the wrong of the defendant, the damages recoverable in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable having regard to the degrees of fault of the plaintiff and the defendant…”

The issue of contributory negligence came before the Supreme Court recently in the case of Noeleen Coffey v. John Joseph Kavanagh trading as Kavanagh Art & Graphic.  The personal injury claim was heard by Mr. Justice Quirke who awarded the Plaintiff €54,900 in damages.  The facts of the case were as follows:  The Plaintiff had worked as a manager in the Defendant’s shop for the preceding 7 and half years.  The Plaintiff suffered a fracture to her wrist when she tripped and fell over a box in the office area of the shop.  The Defendant claimed that she contributed to the accident by failing to keep a proper lookout while in work and to have adequate regard for her own safety.  Judge Quirke did not accept this claim of contributory negligence and held that the Defendant was liable in full for failing to have a safe system of work in place.

The Defendant appealed this decision to the Supreme Court, in particular on the issue of contributory negligence.  The Supreme Court held that while the primary duty of care is on the employer, the Defendant in this case, all the circumstances of the case have to be taken into consideration when looking at the issue of contributory negligence.  Significance was attached to the fact that the Plaintiff was a manager, her familiarity with the office, her knowledge of the clutter in the office, that she had made a complaint previously and that she knew of the potential danger.  The Supreme Court held in the circumstances that a degree of contributory negligence on the part of the Plaintiff was established.  She was held 25% liable and accordingly her award of damages was reduced by 25% to €41,175.

Therefore a finding of contributory negligence on the part of any Plaintiff in a personal injury claim will have the effect of reducing any award of compensation by the commensurate amount.

By Ciara Bannerman BL for and on behalf of My Case Solicitors

This was highlighted in the recently delivered decision of Judge Michael White in the case of Paul Kiernan v J. Brunkard Electrical Ltd & Quebec Construction Ltd.  The second named Defendant, Quebec Construction Ltd sought to dismiss the Plaintiff’s claim for compensation on the grounds that it was statute barred.

The Plaintiff worked as an electrician and alleged that he was injured on the 11^th June 2007 while working on a building site.  The second named Defendants were the main contractors on the site.

The limitation period for personal injuries actions is governed by Section 3(1) of the Statute of Limitation Act, 1991 as amended by Section 7(A) of the Civil Liability and Courts Act, 2004.  This provides that an action for personal injuries must be brought within 2 years from the date of the accident or the date of knowledge, if later.

Very simply put, any claim for compensation for a personal injury that is caused by the negligence of another, must be brought within 2 years from the date of the accident.

In the instant case, the court also examined the issue of the “date of knowledge”.  The Plaintiff contended that the date of knowledge was not the date of the accident, but a later date on which his solicitor did a Companies Office search and discovered that the second named Defendant was a limited company.  Judge White stated that the only extra information that was acquired from the search was that it was a limited liability company and the address of its registered office.  Judge White had no doubt that the date of knowledge of the claim was the date of the accident.

The limitation period is not the only issue that a potential litigant needs to be aware of in a personal injury claim.  The first step that should be taken by a person who suffers an injury as a result of the negligence of another is to serve a letter of claim.  The purpose of the letter of claim is to notify the proposed defendant that proceedings are being contemplated and the nature of the alleged wrong committed.  Section 8 of the Civil Liability and Courts Act, 2004 provides for certain adverse consequences where a Plaintiff in a personal injuries action fails, without reasonable cause, to serve the letter of claim within 2 months of the accident or as soon as possible thereafter.  The adverse consequences include a refusal to order costs to the successful Plaintiff.

By Ciara Bannerman BL for and on behalf of My Case Solicitors

Section 26 states that if a plaintiff in a personal injury action, gives or dishonestly causes to be given evidence (to include evidence on affidavit) that is false or misleading, in any material respect, and he/she knows to be false or misleading, the court can 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.

The legislator clarifies in section 26 that an act is done dishonestly by a person if he/she does the act with the intention of misleading the court.

The need to be aware of this provision was highlighted recently with the High Court decision of Judge Smyth in the case of Nolan Junior v O’Neill & Anor (2007 9146P).  This case involved a claim for compensation and loss of earnings by Mr. Nolan as a result of a motorcycle accident.  He sued his employer, Patrick O’Neill and a taxi driver, Danny Mitchell arising out of the accident in November 2005.

Mr. Nolan had worked in his family business as an alarm fitter and claimed that as a result of the accident he suffered serious injuries to his left hand, left knee and right foot and neck, causing him to spend several months in a wheelchair.

He further claimed that because of the injuries that he suffered, he was unable to take over the family business and had to effectively “learn to walk again”.

Video evidence was adduced at the trial showing the Plaintiff participating in drifting, a form of racing which forces the car to slide sideways through a turn.  The videos were shot over an 18-month period after the accident.  The Plaintiff had given evidence to a rehabilitation consultant that he had to give up his hobby of drift racing because of his injuries.

Judge Esmond Smyth dismissed his entire claim for compensation.  He said that the Plaintiff had given false and misleading evidence and had deliberately exaggerated his claim in relation to his loss of earnings.  There were further images shown at the trial of Mr. Nolan lifting up another man and throwing him over the counter of a fish-and-chip shop.  Judge Smyth felt that this was inconsistent with his claim that weightlifting was also a problem for him since the accident.

Judge Smyth stated if were it not for his “false and misleading” evidence, he would have awarded the Plaintiff €190,000.  Judge Smyth stated that he was satisfied that no injustice would result from his decision.

Section 25 of the Civil Liability and Courts Act, 2004 also makes it a criminal offence to give or dishonestly cause to be adduced false and misleading evidence in a personal injuries action.  The High Court has displayed that it has no difficulty in dismissing an entire claim for compensation where the plaintiff has exaggerated his/her injuries or loss of earnings.

By Ciara Bannerman BL for and on behalf of My Case Solicitors

Road traffic collisions, whether they are major or minor accidents, are always a traumatic experience for the parties involved. No matter who is at fault, the most important thing is to remain calm. This is easier said than done, but it will be more difficult to assess the situation if you’re not thinking straight!

 In general a person’s first instinct is to call the Gardaí. However, if it only a minor accident where no serious injuries have been sustained, the Gardaí will more than likely not attend the scene of the accident. Without any authority present, the parties involved in the accident may get flustered or confused about what to do next. Worse still, the person responsible for the accident may use this as an opportunity to leave the scene and avoid responsibility.

It’s important to keep in mind the following points to help you can deal successfully with the accident, and ensure you are fairly compensated. Some people find it helpful to keep a “What to Do” check-list in their car that they can refer to if they are ever involved in a motor accident.

DO

1.       Take the particulars of the other driver involved. Relevant details include:

·         Insurance details-policy number and expiry date

·         Insurance company’s name, address and contact number

·         Personal details-name, address and contact number. Take the same details for the vehicle owner if vehicle owner is not the driver involved in the accident

·         Vehicle registration- If the insurance of the driver at fault is invalid, then the vehicle registration will help Gardaí trace the vehicle and the driver 

2.        Take photos

The majority of people nowadays have a mobile phone with a camera, so there’s no reason not to take photos of the accident. Another option is to keep a disposable camera in your car. Photos are an excellent way of showing any damage caused. Drivers at fault may try to play down the severity of the accident, but photos prove otherwise!  

It’s also recommended to take note of the speed that each party was driving at, the speed limit in the area, any road markings, visibility, road surface and weather conditions.

 3.       Report the accident

Contact the Gardaí immediately. If they don’t attend the scene, make sure to call into the nearest Garda station to report the accident. Present the Gardaí with all the information that you have collected. Contact your insurance company, and also provide them with all the relevant information.  

Both your insurance company and the Gardaí will record the accident. This will prevent the responsible party from denying the accident ever happened, or attempting to cover up damage caused. If you suffer injuries in the future as a result of the accident, it’s useful to have the accident on file with an official authority.

 DON’T

1.       Leave the scene until ALL details are exchanged

It’s quite common that after a minor accident you’re so grateful that the outcome wasn’t more serious or life-threatening, that your relief will affect you thinking. Don’t let the other driver convince you that they will return with their details, or that they will phone you to make arrangements about insurance details etc. Be firm! Insist on collecting all the information. If the other driver maintains to be in a hurry, don’t allow their urgency to affect your insurance claim.

2.       Admit liability

Most motor insurance policies will require drivers not to admit liability at the scene of the accident. Check with your insurer if in doubt. 

By admitting liability, you are taking responsibility and admitting to causing the collision. Remember that things can seem very unclear at the time of accident. After getting over the shock and running through the sequence of events in your head at a later stage, you may begin to realise that you were not completely at fault or not responsible at all. Let the insurance companies figure out between themselves what happened through the details that you’ve provided.

Legal Advice

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And remember, you cannot be fired for making a personal injury claim against your employer!

Duty of Care

If the accident is not due to your own carelessness, then the blame lies with the employer for not providing a safe working environment. Employers are, by law, required to provide their employees with a safe working environment. This is known as a duty of care. If an employer breaches this duty, it means that an employer was negligent and did not take reasonable care of their employee.

It’s useful to know what the general duties of an employer are. This often gives employees peace of mind when making a claim, as they understand that their employer is in the wrong because the employer has not fully complied with their duty of care.  Take a look at the brief summary of the ‘General Duties of an Employer’ as stated in the Safety, Health and Welfare Act 2005:

Employers must:

·         Provide a safe building and environment for employees to work in

·         Manage and conduct work activities in such a way as to ensure the safety, health and welfare at work employees

·         Provide the necessary information, instruction, training and supervision to carry out work

·         Ensure all plant and machinery is serviced and in complete working order that will not risk the safety or health of employees

·         Provide competent and skilled co-workers

Click the following link for a more detailed account of the ‘General Duties of an Employer’. http://www.irishstatutebook.ie/2005/en/act/pub/0010/sec0008.html

What’s the next step?

1.       Report the personal injury to your employer. Ask them to record the accident and make a written account of it. Keep a record for yourself of the accident.

2.       Take photos. Let’s say a box falls from a shelf onto your head. The employer will most likely then store the box in a different place to prevent another accident. Take a photo of the box and its location on the shelf at the time of the accident. Now you will have evidence of the box’s original location. If you are unable to take a photo ask one of your co-workers instead.

3.       Don’t admit liability. Similar to motor accident, don’t take responsibility for the incident. Let the insurance companies sort out the details between themselves.

4.       Go to the hospital. If the personal injury sustained is serious, go to the hospital immediately. Keep records of any medical forms/x-rays that the hospital gives you.

Legal Advice

Contact MyCase Solicitors for legal Advice