Reform of the Occupiers Liability Act 1995 and the Duty of Care

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

Distressed Assets: Possession and Damages

PATRICK HENNESSY V KEN TYRELL & EVERYDAY FINANCE DESIGNATED ACTIVITY COMPANY

This case was an emergency interlocutory application by the Plaintiff to prevent the Receiver Ken Tyrell and Everyday Finance from taking possession and selling his lands and from prohibiting an on-line action.  The urgency was that there was an auction scheduled to take place imminently.

By way of background the purchase of the property was funded by a loan from AIB and secured by a Charge over the lands.  The Plaintiff failed to meet his obligations in November 2016 and while he engaged with AIB, the loans were eventually transferred in 2019 to Everyday Finance.  Further engagement ensued between the Plaintiff and Everyday Finance however no resolution was found.

In September 2021 Everyday appointed Ken Tyrell as Receiver.  The Receiver’s power was limited to collection of the rents and profits.  The Plaintiff and his brother had a company called Hennessy Brothers Farming Limited which had licences to farm most of the lands subject to a €50,000 per annum payment which included a licence fee which was not paid over to the Receiver.  The Plaintiffs were unable to pay their debts or secure a restructuring of their debts.

The application for the injunction involved the restraining of the sale in the manner proposed by the Receiver and Everyday.  It was not contested that Everyday had a power of sale or that the power had arisen or that it was exercisable.  The Plaintiff said that he was shocked to be told that his lands were advertised for sale on a website.  The land appeared to have been first advertised for sale in early February 2022 with an auction date for the 24th February 2022 and the advertising campaign appeared to have been limited to those who might stumble on the listing on the website.

The Judge ultimately concluded that he did not believe that damages would be an adequate remedy.   Judge Allen referred to the issue of Everyday attempting to sell the lands with the Plaintiff in possession, but he did not go as far to say that Everyday were not entitled to offer the lands for sale without vacant possession.

Ultimately the Court concluded by granting the Orders sought essentially preventing the sale of the charged lands.  The Court did make directions to ensure the expedient exchange of Pleadings and early Trial date to minimise the risk of injustice to either party.

Vaginal Mesh Implants

If you have been affected by vaginal mesh implants then you are most likely entitled to compensation.  $8 billion paid out globally to date by manufacturers.

 

Vaginal mesh implants were introduced in the late 1990’s as a routine treatment for stress urinary incontinence and pelvic organ prolapse which are common complications following childbirth. These flexible plastic scaffolds have been used widely across Ireland and the UK for many years but have led to life altering complications for many women including nerve damage, pain, vaginal scarring, organ perforation and several reported deaths.

 

It is now widely accepted that up to 25% of women will suffer the consequences of having vaginal mesh inserted. Unfortunately, many of these complications are not initially obvious and may take several years

to manifest. It is also unfortunate that complications have been reported since 2008, yet Irish doctors continued to insert these long after the first FDA warnings appeared. In addition mesh companies engaged in ‘illegal, false and deceptive business practices’ and ‘put profits ahead of the health of millions of women’.

 

MDM Law is dealing with enquiries on behalf of a number of clients who are suffering from complications following such surgeries.  We provide specialist female advice supporting our clients in relation to this issue and work closely with a fully trained urogynaecologist.

 

Our team of exceptional lawyers have extensive experience and knowledge in dealing with this issue.  We take an empathetic sensitive approach and are proud to represent clients in securing compensation for them.

Should you have any queries in respect of this issue please contact us for confidential advices on 0212390620.

 

 

Vaginal Mesh

 

Vaginal Mesh

Have you or a loved one been affected by the vaginal mesh implant scandal?

Transvaginal mesh implant was a popular gynecological procedure carried out on women most commonly for the purposes of treating prolapse or stress urinary incontinence.

Unfortunately, a growing number of women have suffered with serious complications arising from this procedure being carried out and have developed chronic pain and other life altering problems.

For free confidential female led medico legal advice please contact MDM Law on 021 239 0620 or e-mail carrie.mcdermott@mdmsolicitors.ie or deirdre.rafferty@mdmsolicitors.ie

INTERPRETING “STRUCTURE” – HIGH COURT AFFIRMS OMBUDSMAN DECISION:

 

LLOYD’S INSURANCE COMPANY, FINANCIAL SERVICES AND PENSIONS OMBUDSMAN AND DONNELLY AND LUIJKX

The Facts:

This matter came before the High Court by way of Statutory Appeal taken by the Insurer against a decision of the Financial Services and Pension Ombudsman made in respect of a complaint concerning an insurance policy. The Policy provided cover against structural defects in the property.

Donnelly and Luijkx purchased a house in 2006 with the benefit of an insurance policy which covered against structural defects in the property. In 2010 it emerged that some of the houses in the development had sustained damage associated with pyrite in the in-fill. Further defects came to light in the property when it was found that deflecting roof trusses in the attic were causing gaps and cracks in the ceilings and walls of the house. The property owner’s engineer in their report stated that “we are of the opinion that the damage observed is a direct result of the structural inadequacy of the in-situ trusses”.

There were two separate issues, one being a pyrite related property damage and damage to the structure of the roof. The Provider gave cover in respect of the pyrite damage but did not accept that the damage relating to the roof involving deflecting roof trusses was covered. The basis for the Provider’s refusal was rooted in the view that the roof trusses themselves, which it was accepted was structural and therefore covered by the policy, were not inherently defective. It was maintained that the deflection to the roof trusses arose from the manner in which a water tank had been positioned in the attic area without adequate or properly placed load spreading supports which in turn caused an intended load to be applied to the trusses. The Provider maintained that this constituted damage “caused to the structure” which was outside of the Policy rather than damage inherent “in the structure” which was covered.

The Ombudsman decision:

Donnelly and Luijkx made a complaint to the Ombudsman who upheld their complaint on grounds that it was unreasonable, unjust and improper for the provider not to remediate the damage, and the Provider was also ordered to compensate them for inconvenience in the sum of €20,000. The entire complaint centred on the question of whether cover was properly declined having regard to the terms of the contract of the insurance and the evidence as to the cause of the damage. The Provider appealed the decision maintaining that the Ombudsman was guilty of serious and significant error in construing the definitions of “structure” in the policy.

The Ombudsman’s jurisdiction to consider and to determine complaints is created by part 5 of the Financial Services and Pensions Ombudsman Act 2017 and more particularly under Section 60. The Ombudsman may order redress including financial redress for the complainant as he considers appropriate. Any financial redress shall be such amount as the Ombudsman deems just and equitable having regard to all the circumstances which shall not exceed any actual loss of benefit under the scheme concerned or the statutory cap under Section 60(50). The Ombudsman noted that the fact of the application of the policy had to be subject of expert engineering analysis indicated the complexity of the contractual provision and he did not accept the provider’s position. He believed that any reasonable examination of the circumstances of the complaint indicated that the defect was with the structure.

The jurisdiction to order compensation by the Ombudsman is provided for in Section 60 (40) (d) which empowers the Ombudsman to pay an amount of compensation to the complainants for any loss, expense or inconvenience sustained by the complainants as a result of the conduct complained of. The level of compensation is however capped by this section at a monetary sum of €250,000. In this case a sum of €20,000 was awarded by the Ombudsman.

The Appeal:

On Appeal the decision of the Ombudsman was upheld and it noted that structure under the policy is defined as including “load bearing parts of … roofs” and accordingly that the trusses are part of the structure. The Court was satisfied that the Ombudsman was entitled to find that it was unreasonable for the provider not to accept that the damage was caused by a defect in the design, construction, material, components, and workmanship of the trusses and therefore covered by the policy. Furthermore, the Court was satisfied that the level of compensation ordered was within a range that was reasonable and they affirmed the decision and directions of the Ombudsman.

Niamh O’Connor| Partner

MDM Solicitors | 18 South Mall, Cork, T12 WR97

T: +353 (21) 239 0620

E: niamh.oconnor@mdmsolicitors.ie

W:www.mdmsolicitors.ie