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Improved Family Justice System on the cards

On the 16th November 2022 the Minister of Justice published the Family Justice Strategy 2022-2025.  This plan was created over a period of two years by the Family Justice Oversight Group and ushers in a new era for the Family Justice System, with the needs of children at the centre thereof, giving children voices to be heard and considered, and supporting them in their own individual journey through the Family Justice System.

The strategy also aims to promote the increased use of digital solutions for families to access and legal professionals to participate in the family justice system (digitalisation), the increased use of non-court options to resolve disputes (Alternative Dispute Resolution)

New legislation will also be introduced to establish dedicated Family Courts and to formulate bespoke Rules of Court for family law proceedings.

The aforesaid reform is to be welcomed and certainly a step in the right direction.

If you would like to arrange a consultation or would like further information please get in touch with Mornè Gouws of our office via phone or email morne.gouws@mdmsolicitors.ie

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HSE DATA BREACH – NOVEMBER 2022 UPDATE

 

The recent ransomware attack on the HSE I.T. systems causing Hospitals and G.P practices to shut down some 18 months ago has once again been the highlight of media reports in the last few weeks.  While the focus has been the immediate disruption caused, the potential exposure of sensitive citizens data is now well known.

Data breaches by the HSE are not uncommon.  In February of this year, a new Covid-19 vaccination rollout I.T. system was established and backed by Salesforce CRM and IBM who won a State Tender to provide the service.  However due to 52 data access points within the system, a significant data breach occurred mainly due to employee error.

Furthermore, it was reported recently that warnings were made about “weaknesses” in the Health Service Executive’s computer systems three years ago.  Issues were identified with “security controls” and “disaster recovery protocols” by internal audits which were flagged in HSE annual reports for two years in a row.

The HSE have commenced contacting those affected (approximately 112,000 individuals) with the first 300 being contacted this month.  The HSE have allowed themselves until April 2023 to contact all those affected.

WHAT DOES THIS MEAN FOR THE IRISH PUBLIC?

 

Due to the ransomware attacks and previous data breaches, an enormous amount of sensitive data to include PPS Numbers, date of births and other personal records can be sold online on the Dark Web to the highest bidder who with the use of social engineering can use this information for fraudulent purposes at a significant cost to the victims whose data has been used in this way.   For such victims, the main recourse is to pursue a claim under the GDPR Regulations which are governed in Ireland under the Data Protection Act 2018.

There are two avenues of complaint:

  1. A complaint to the Data Protection Commissioner (DPC)

As the DPC can reach findings about whether there has been a breach, the DPC cannot award compensation but if liability is in question, then the DPC may be able to clarify the matter before proceedings are issued.

  1. A Data Protection Action in either the Circuit Court or High Court under S.117 Data Protection Act 2018.

 

Under GDPR a data controller or a data processor such as the HSE must contact you and inform you that your personal data has been breached.  However due to the recent media coverage it may be disproportionate for the HSE to establish contact.  If you believe your data has been breached, you should contact the HSE directly to clarify whether it has.

 

Prior to the GDPR, the Irish High Court held that only material damage was compensable.  However, Article 82 of the GDPR establishes a right to compensation for a data subject who has suffered either material or non- material damages as a result of the breach.  Such loss has been difficult to quantify but recent persuasive UK Authorities have ruled that compensation can be awarded for loss of control over personal data, even where there was no pecuniary damage or distress.   However, in Ireland, it will be necessary to show such loss from a psychological point of view.  The Irish Courts have repeatedly ruled that upset or distress short of psychiatric injury is not recoverable in tort. Therefore, you would have to make a claim through the Personal Injury Assessment Board for a claim for such injury and to do so within 2 years despite the fact that the GDPR statute allows for 6 years.  It may be the case that any such data used for fraudulent purposes will allow one 6 years to take a case to the Circuit or High Court for material damage.

 

In the last month, the HSE has started to contact the 112,000 individuals affected by this and have allowed themselves until April 2023 to notify those affected.  This is alarming to say the least as personal data can be used to create fake bank account, PPS Numbers and fake identities for numerous criminal activities with a potential personal financial loss for those affected.

 

If you have been affected and have been contacted by the HSE, then do not hesitate to contact us on 021 2390620 or email: anthony.shields@mdmsolicitors.ie and a member of our specialised privacy and data protection experts will be able to advise you.

 

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Autism and Paediatric Traumatic Brain Injury

Two cases have now come before the Courts in Ireland where the family of a child with Autism have sued the National Maternity Hospital over the circumstances surrounding the child’s birth.

 

  • Updated Research

 

Over the last 10 years or so scientific evidence has developed and shown that perinatal and intranatal trauma are significant risk factors for developing autism. The first advancement in this regard was a Californian article in 2017 which examined the inter-relationship between birth trauma and the risk of developing autism.

 

Researchers discovered that nearly 40%, of the approximately 6,000 children reviewed, suffered complications either shortly before or during birth. The complications researchers found to be most closely related to autism included birth asphyxia and pre-eclampsia. This research has in turn led to more clinical negligence case investigations.

 

  • Legal cases taken against National Maternity Hospital

 

The first test case in this jurisdiction was that of Finn Phillips v NMH. In June 2019 the case was settled by mediation where Mr. Justice Kevin Cross was happy to endorse a settlement of €7.25 million for a child that developed autism following a traumatic birth.

 

The infant was delivered by ventouse delivery and it was alleged that he was unnecessarily exposed to both asphyxia and trauma from the vacuum extraction. His legal team argued that this led to potential long term consequences. They claimed the injuries suffered included developmental delay and autism. It was claimed that there was a failure to manage the mother’s labour appropriately and an alleged failure to intervene in time.

 

Whilst this case is not a strict precedent as each case will turn on its own facts it is a landmark case in that it related to autism arising from a birth injury and was settled for a very significant sum.

 

Recently a second case against the National Maternity Hospital has been settled  for €10 million, following an eight year battle. Ashton Shiels Flynn, through his mother Michelle, sued the NMH over the circumstances of his birth. The court heard it was only the second case to come before the courts seeking to establish an alleged link between autism and alleged hypoxic event during delivery.

 

  • Causation and Negligence

 

As scientific research progresses causation factors will become definitive and unfortunately it seems probable that there will be a lot more of these type of cases as families investigate causation of autism and developmental delay.

 

Clinical negligence experts in the UK have indicated that the main areas of alleged negligence, and this is by no means an exhaustive list and will continue to be expanded upon, linking autism to birth would be:-

 

    • Pre-eclampsia;
    • Birth management and a failure to intervene in delivery;
    • Instrumentation delivery;
    • Delay in undertaking/undergoing a c-section;

 

  • Next Steps for Families

 

It is important for families who have concerns regarding their child’s birth to take up the relevant medical records and seek expert advice from a team of legal and medical experts to identify any failures or negligence during delivery leading to increased risk of autism.

 

If you would like to arrange a consultation or would like further information please get in touch with Deirdre Rafferty of our office via phone or email deirdre.rafferty@mdmsolicitors.ie

 

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Personal Injury Awards: The Tide is Turning?

It is over 6 months since the Personal Injuries Guidelines (“the Guidelines”) (as discussed in previous articles here: Judicial Council Guidelines & Judicial Guidelines)were commenced on 24th April last. The Guidelines were commenced in an effort to reduce and standardise awards in personal injuries matters, and also as a result of persistent pressure from the insurance sector, mainly policyholders. The question is whether the Guidelines have had the impact they are designed to have.

It is arguably too soon to analyse awards handed down by the Judiciary, as it takes anywhere from 12 to 24 months for a claim to filter through the Court process. Equally, we are faced with the reality that most actions taken are settled, with no data available in relation to the majority of these settlements. Therefore, analysis of the awards made by the Personal Injuries Assessment Board (“PIAB”) is key to examining whether the Guidelines have had any effect.

PIAB’s annual report, published on 27th July last (available herehttps://www.piab.ie/eng/news-publications/Corporate-publications/2020-Annual-Report.pdf), is the first steppingstone in the analysis of awards under the new regime. In the three-month period following the implementation of the Guidelines, a 50% fall in the average value of awards was seen. This has set the trend across the board and has been backed up by a further PIAB report entitled ‘PIAB Personal Injuries Award Values April 24th – 30th September 2021. This report has analysed a five-month period of the current regime and the results are as follows;

  • 2,649 claims assessed pursuant to the Guidelines;
  • Average award reduced by 40% to €14,233 (including special damages);
  • General damages awards reduced by 46% to €11,808;
  • Motor Liability claims reduced by 40% from to €13,230;
  • Public Liability claims reduced by 40% to €15,697;
  • Employers Liability claims reduced by 44% to €17,203.
  • Almost half (48%) of all awards made by PIAB were under €10,000, compared to just 12% of awards in 2020.

It is clear to see that the Guidelines have had a significant impact on the level of PIAB awards to date. The Government, amongst others have welcomed this evidence of reduction in awards since the publication of the Guidelines. The question remains however, is it here to stay?

Awards are part and parcel of personal injuries actions. It does not necessarily end there. This award must be accepted by both the Claimant and the Respondent. Early indications show that contrary to what PIAB initially thought would happen post Guidelines, Claimant acceptance rates have fallen by 14% compared to 2020. This means that unless the Claimant does not wish to continue the action, the next step is to initiate Court proceedings. This brings us back to whether the Guidelines will have a long-lasting impact, and whether the Judiciary will apply them as rigidly as PIAB have to date.

To date, there have been no specific decisions in relation to quantum by the Courts. However, it is expected that cases to which the Guidelines specifically apply will come before the Courts by the turn of 2022. However, it is noted that the Guidelines were not unanimously supported by the Judiciary, with a vote of 83 to 63 of the Judicial Council on 6th March last. It is also noted that certain members of the Judiciary have stated that the Guidelines “ do not change the law”. It remains to be seen whether the tide has turned for good.

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GENERAL SCHEME OF THE SICK LEAVE BILL 2021

The General Scheme of the Sick Leave Bill 2021, providing for sick pay and leave, as announced recently by the Tánaiste will be phased in over a four year period from January 2022.  This new legislation will bring Ireland in line with its European neighbours and will oblige employers to provide a minimum number of paid sick days annually from 2022.  The scheme will commence with three days per year in 2022, rising to five days payable in 2023 and, seven days payable in 2024.

It will be the latest in a series of actions that have improved social protections for workers and the self-employed over the last five years, including:

  • paternity benefit
  • parental leave benefit
  • enhanced maternity benefit
  • treatment benefit
  • the extension of social insurance benefits to the self-employed

 

Sick pay will be paid by employers at a rate of 70% of an employee’s wage, subject to a daily threshold of €110. The daily earnings threshold of €110 is based on 2019 mean weekly earnings of €786.33 and equates to an annual salary of €40,889.16. It can be revised over time by ministerial order in line with inflation and changing incomes.

The rate of 70% and the daily cap are set to ensure excessive costs are not placed solely on employers, who in certain sectors may also have to deal with the cost of replacing staff who are out sick at short notice. The Bill is primarily intended to provide a minimum level of protection to low paid employees, who may have no entitlement to company sick pay schemes. The legislation will expressly state that this does not prevent employers offering better terms or unions negotiating for more through a collective agreement.

Employees must have a minimum of six months service with the employer to be eligible to receive statutory sick pay. The scheme applies to both fixed term and part time employees. It is also a condition of the scheme that the employee is medically certified as unfit to work.  The Employer must deduct taxes in the normal manner.  Once the entitlement to statutory sick pay from the employer ends, employees who need to take more time off may qualify for illness benefit from the Department of Social Protection subject to PRSI contributions.

Employers will eventually cover the cost of 10 sick days per year in 2025. It is being phased in to help employers, particularly small businesses, to plan ahead and manage the additional cost, which has been capped.

Employers should be aware that the draft legislation will not erode existing contractual rights where an employee’s current contractual entitlement to sick pay exceeds the amount of paid sick leave envisaged by the draft legislation.

As currently drafted, the bill does not provide for any further top up of salary for the employee and nor will any compensation scheme be provided for employers to assist them with the costs of sick pay.  Therefore, Businesses around the country must now make provision for this new regime and consider where changes to existing policies are required once the scheme is introduced. The right to sick pay will be legally enforceable by employees through the Workplace Relations Commission and the Courts. The scheme will be another arsenal in an Employees complaint against an Employer.  Employers need to recognise this and ensure that the correct policies and procedures are put in place in their workplace.   If you are an employer who is concerned about issues surrounding Sick Pay policies and need to review your employment contracts, contact our Employment Law Expert Anthony Shields by telephone on 021 239 0620 or by email: Anthony.shields@mdmsolictiors.ie