Author: Carrie McDermott

The long anticipated appeal by the Plaintiff to the Supreme Court against the Personal Injuries Guidelines was heard over the course of two days this week. The appeal was heard by a seven-Judge Court, comprising four Supreme Court judges – Mr Justice Maurice Collins, Mr Justice Gerard Hogan, Mr Justice Peter Charleton and Mr Justice Brian Murray – and three Court of Appeal judges, Ms Justice Máire Whelan, Ms Justice Mary Faherty and Mr Justice Robert Haughton.

The action challenges guidelines drafted by the Personal Injuries Guidelines Committee of the Judicial Council, as required by the 2019 Act. They came into force in April 2021, after they were approved by a majority of the 146 members of the Judicial Council.

The Plaintiff’s legal team submitted that the guidelines interfered with the independence of the Courts and her rights and the passing of the guidelines in March 2021 was a “legislative act cloaked in a veneer of judicial action” and amounted to an unconstitutional interference with judicial independence.

They argue that the Personal Injuries Assessment Board acted outside its powers in assessing her claim under the guidelines and subsequently breached her rights to natural and constitutional justice. It is alleged the Judicial Council acted outside of its powers in adopting the guidelines.

Lawyers on behalf of the State have indicated that Judges can depart from the guidelines if they feel the award does not do an injury justice. Eoin McCullough SC, on behalf of the State, stressed that the guidelines are not legislation due to the fact judges can depart from them.
Mr. McCullough SC responded to a number of hypothetical scenarios, raised by the seven panel Court, where judges might be entitled to make a higher award than is set out in the guidelines.

Mr. McCullough SC submitted that while judges were expected to follow the guidelines, if they believed these figures were “simply wrong”, the Judicial Council Act of 2019 provided for a departure.
When asked by Mr Justice Murray if “mere disagreement” with a value given in the guidelines allowed for departure, Mr McCullough submitted it did as long as other principles, such as proportionality, were observed and reasons set out.

Responding to the submissions put forward on behalf of the State, Feichín McDonagh SC, for Ms Delaney, said the guidelines arose out of a process “forced” on the judiciary by the Oireachtas. Mr. McDonagh SC said the fact no judge who was not a member of the Judicial Council could hear this appeal spoke to the fact the March 2021 decision “crosses and recrosses the boundaries” between the judiciary and the executive.

The Court has reserved its decision and a judgment is now awaited.

The Occupiers Liability Act 1995 is a governing legislation in respect of the duty a Business owes to a Visitor who enters onto its premises.  The Civil Liability Act 1961 states that for an Occupier of a premises to be relieved from this duty a written Agreement between the Occupier and the Visitor must be entered into.  The law therefore in that regard had been interpreted strongly in favour of the Visitor in the event that any accident befalls the Visitor.  Changes to the law on Duty of Care have been proposed as part of the Government’s general commitment to Insurance reform in Ireland.  Small and medium size Businesses have been complaining for over a decade that Insurance costs are prohibitive to doing business in Ireland and the reform of the Duty of Care contained under the Occupiers Liability Act is part of the Government’s initiative to bring down Insurance costs for business sectors.  There are four proposed changes set out in the Courts and Civil Law (Miscellaneous Provisions) Bill of 2022 which has been introduced by Minister McEntee in recent months.  The four keys areas of reform can be summarised as follows: –

1. A rebalancing of the Duty of Care owed by Occupiers to Visitors and recreational users.
2. A change to the standard of clarity in respect of when the Occupier of a property has acted with reckless disregard to a Visitor or Customer.
3. The circumstances where a Court can impose liability on the Occupier where a person is  unlawfully entered onto a premises for the purposes of committing an offence will be limited.
4. Where a Visitor or Customer voluntarily assumes a risk such an assumption will be set out in the amendments to the Act and liability arising therefrom will be curtailed.  The proposed Bill will most likely go before the Oireachtas for enactment after the Summer recess break.

For further information please contact MDM Solicitors on 021 239 0620

 

A Review of a recent application to dismiss a personal injuries action

Patrick Rooney v Health Service Executive – [2022] IEHC 132

The personal injuries action in question, which arose out of a medical negligence action, was the subject of an application to dismiss the claim on the following grounds:-

• failure to provide full and detailed particulars of the claim as required by the Civil Liability and Courts Act 2004, (2004 Act),
• continued failure to obtain a report from an independent expert supporting the claim for medical negligence, and
• the inordinate and inexcusable delay in prosecuting the proceedings.

Background

The Plaintiff alleged that following treatment at the Mater Hospital Dublin, the remnant of an angioplasty balloon and catheter remained in his leg, resulting in both a below and above knee amputation. Although the treatment was provided in the Mater, the action was brought against the Health Service Executive and it was flagged to the Plaintiff’s solicitors at an early stage that the HSE was not the correct Defendant in circumstances where the HSE does not operate the Mater Hospital.

The leading judgment is that of the Supreme Court in Primor plc v. Stokes Kennedy Crowley which set out that a Court must consider three issues in such applications:

• has there been inordinate delay;
• has the delay been inexcusable; and
• if the answer to the first two questions is positive, it must be considered whether the balance of justice is in favour of or against allowing the case to proceed.

It was noted that these principles are complemented by the separate but overlapping power of the Court to dismiss proceedings where there is a real and serious risk of an unfair trial and/or an unjust result.

Conclusion

In applying the above principles, Mr Justice Simons held that there had been inordinate delay in this case in circumstances where almost eight years had passed since the treatment itself and six years had elapsed since the proceedings had been instituted. He further opined that there was not merely delay in progressing the proceedings but rather “in a very real sense, the proceedings were never properly commenced”.

In considering whether the delay was inexcusable, the Court noted that there were lengthy periods of inactivity on the part of the Plaintiff’s Solicitor in pursuing an independent medical report, as required under the 2004 Act.

In addition to dismissing the claim for inordinate and inexcusable the delay, it was also held that:

It was in the interest of justice to dismiss this case for failure to comply with the statutory requirement to particularise a personal injuries action. The delay in the case was unreasonable such that to continue without the expert report had now become an abuse of process.

The claim was also dismissed on the separate ground that no reasonable cause of action was disclosed against the HSE where the Mater Hospital is neither owned nor operated by the Health Service Executive.

The massive cost of the scandal at South Kerry Child and Adolescent Mental Health Service (CAMHS) has now come to light following the approval by the Government of a non-adversarial compensation scheme.

The Maskey Report confirmed the treatment 227 children received from the doctor in question was “risky”, as was the treatment 13 children received from other doctors.

It also found proof of significant harm to 46 service users, including significant weight gain, raised blood pressure and the production of breast milk. Significant failings in the supervision of Dr Kromer and wider governance failings were also found.

At least 240 families will be able to apply for compensation without having to go to court under the plan. While it will be less costly than if claims were to be litigated in court, it is speculated the scheme is still likely to cost in excess of €20m, given the level of harm involved.

Letters issued by the HSE to the parents and guardians of children involved said they will be able to apply for compensation and clinical supports under a scheme administered by the State Claims Agency.

It is understood that families who opt for the scheme will receive an initial payment of €5,000 to assist with medical expenses before entering what is being described as a non-adversarial mediation process under which an offer of compensation will be made. A panel of independent psychiatrists will provide expert reports for the purposes of the mediation.

Parents were told these reports would not be disputed by the State Claims Agency, while liability will not be disputed either. If agreement on the level of compensation is not possible, a claim will be independently assessed by a senior counsel acting as a mediator. Families unhappy with the mediator’s decision can have it reviewed by retired former High Court president Peter Kelly.

Families will still have the option of pursuing claims in the courts if they opt not to use the mediation process. Please contact our offices on 021 2390620 or email us at info@mdmsolicitors.ie if you require more information or assistance.

 

Carrie McDermott talks to Jonathan Healy on the Red Business Podcast – Episode 237 – 15th April 2022.

Carrie discusses the impact of new guidelines on personal injury awards following their implementation almost one year ago on 24th April 2021 and following the most recent report from PIAB (available here: https://www.piab.ie/eng/news-publications/Corporate-publications/PIAB-Personal-Injuries-Award-Values-April-24th%20-%2031st-December-2021.pdf).