Litigation Bulletin – March 2017

Facts :

Mr. Hyland sued Lamosa Limited in Dublin Circuit Court claiming that he had fallen from a ladder and injured his neck, ribs and back. He claimed that his employer Lamosa Limited T/A Extraspace was guilty of negligence.

The Defendant contended that the accident occurred as the ladder had been improperly positioned by Mr. Hyland who had received ‘on the job’ training.

The Plaintiff claimed that in June 2013, while standing on the ladder it moved because of a loose hinge and as a result thereof, the Plaintiff fell heavily to the ground injuring himself. Soon after the accident the Defendant had terminated his employment as he was unable to work and he became depressed and lost interest in any fitness and other daily activities that he was used to.

Decision :

President of the Circuit Court indicated that the ladder had fallen for one of either two reasons as follows:-

1: The ladder in question was defective or

2: Mr. Hyland has positioned it incorrectly rendering it unsteady and unsafe.

Judge Groarke found that “on balance of probabilities that this ladder was not defective and was placed in a position that had meant it had not been properly footed”.

The court was of the view that Mr. Hyland would have been well aware of the precautions that should have been taken when the ladder was being positioned and set up. The Court found that the accident occurred due to Mr. Hyland’s lack of regard for the positioning of the ladder correctly to ensure his own safety. The Court held Mr. Hyland was 100% responsible for the accident. The claim was dismissed, the Court noted that the Plaintiff “should have known better than to do what he did and the accident was as a result of his own misfortune”. The court made no order in relation to costs.

Summary :

This is a further example of the courts tightening views in relation to claims and the requirement that the Plaintiff proves negligence. It is a welcome departure for Insurers who will have found, particularly employer’s liability cases, very difficult to defend over the last number of years. It is a welcome decision and demonstrates the changing tide in the personal injury claims market that is occurring in Ireland.

Charlie Weston : We must come down hard on scammers – and their lawyers

The woman had just loaded the car with the weekly shop.

When she parked in the shopping centre, she knew she would be returning with a trolley full of groceries. This was why she deliberately drove into the parking space, instead of reversing into it.

After loading the car, she started pulling out slowly, looking in her mirror all the time. All of a sudden, she heard a thud. Out of nowhere another car collided with her.

The other car had three people in it. They insisted that no one was injured so there was no need to call an ambulance.

Insurance details were exchanged but the damage was so slight that both drivers agreed there was no need to notify gardaí.

But it was all a scam.

The innocent driver was unaware that she had been targeted by fraudsters.

Shortly after the incident, the people in the car that deliberately instigated the collision contacted the insurance company and pursued injury claims.

The fraudsters claimed for soft tissue injuries, seeking €25,000 each for what they claimed were whiplash injuries. They had legal representation. The insurer settled. All told, the total cost of the claim for the car park chancers was €70,000, in claims and the costs of their lawyers.

And the innocent driver was not even told by her insurer it had paid out, but she did realise it when her premium cost shot up.

This is just one typical try-on by fraudsters.

Scams such as staged accidents, exaggerated claims after genuine accidents and fraudulent claims cost drivers around €200m a year.

The cost to businesses of false and exaggerated claims has not been quantified, but is seen in vastly-inflated premiums.

Businesses have had enough. Their representative bodies are adamant that a small number of “slip-and-trip” lawyers are facilitating the chancers.

They say dodgy claims are clustered around certain towns where well-known ambulance-chasing legal firms are too eager to take on spurious cases. Other towns have few, if any, claims.

A public outcry about the spiralling cost of insurance has seen Minister Eoghan Murphy tasked with producing a report outlining a list of reforms, including a number to tackle our ‘compo culture’.

Thankfully, judges appear to be increasingly inclined to throw out personal injury actions where they suspect the claimant is exaggerating, and awarding costs against them.

But more needs to be done. We need to prosecute perjurers, and take a more robust approach to sanctioning the lawyers who promote these cases.

Perjurers are seldom, if ever, prosecuted.

As long as perjury remains unprosecuted then, as senior counsel Remy Farrell, said: “The administration of the oath becomes little more than a decorous formality.”

Prosecuting perjurers would have a transformative effect on our compo culture and make lawyers operate to a higher standard before they proceed with some questionable cases.

The Law Society needs to continue to come down hard on members who are claims harvesting, with little regard for the veracity of the claims their clients are making.

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