Fatal Injury Award October 2016

A widow whose husband died during construction works on the Dublin Luas line extension has settled her High Court action for €685,000.

Mr Crawford, from Forge Meadow, Ballon, Co Carlow, was assisting in moving concrete slabs from a trailer parked on the roadway adjacent to the site compound near the Luas project. It was outlined to the Court as Mr. Crawford, was attaching the lifting chains to the lifting eyes of the slabs, the rear wheels of a teleporter lost contact with the ground and he wasEilis Crawford (43) had sued over the death of her husband George, a father of two, in what the court heard was a tragic accident near the Luas Extension Project at Citywest Avenue, Dublin, on May 15, 2009.

It was outlined to the Court that this was a tragic accident and there was no question of contributory negligence.

Mrs Crawford had sued, thebuilding materials supplier Shareridge Ltd, of Castlebar, Co Mayo; BAM Rail Ltd, of Kill,Co Kildare; and teleporter driver Stephen Cannon.

It was alleged that there was a failure to ensure the safety, health and welfare at work for Mr Crawford and it was noted that the legislation was onerous and that there were several breaches.

The court also heard it was alleged that there was a failure to provide and maintain a safe and proper system of work.

As a result, it was claimed, Mrs. Crawford and her son and daughter had suffered mental distress and injury and nervous shock.

Mr Justice Kevin Cross said while nothing could undo what happened, he hoped the settlement would be some consolation to the family.

Extracts from the Irish Independent

A salutory warning for employers of the necessity for a non-discriminatory return-to-work policy for staff.

One employee was awarded €16,000 after his employer asked for a letter to confirm he was “100% sane”.

An employer refused to allow an employee return to work even though the employee’s doctor had deemed him fit to return.

The Labour Court found that the employee was constructively dismissed on grounds of disability. The decision reinforces the requirement that employers must have a comprehensive return-to-work policy.

In this case the employee had worked full-time as a barman in the employer’s premises for over four years. In 2012, he attempted suicide twice. He underwent treatment and was out of work for approximately one week. Before returning to work he was asked by his employer to produce a letter confirming that he was “100% sane”. His doctor refused to provide a letter in these terms but did provide a certificate stating that the employee was fit to return to full-time work.

The employer, however, refused to allow the employee to return on this basis. The employee interpreted this as a dismissal.

The Labour Court on appeal from the Equality Tribunal noted that the evidence of the engagement between the parties was “clouded in claim and counterclaim” but, on balance, the court favoured the employee’s version of events.

The court was satisfied that the employer was aware the employee was suffering from a disability. It accepted the employer’s concern over the employee’s ability to return to work, given the challenging nature of the working environment. However, it condemned the employer’s failure to take any positive steps to facilitate the employee’s return to work.

The court concluded that the employee had been dismissed in a discriminatory fashion on grounds of disability. It upheld the equality officer’s decision and actually increased the award for discriminatory dismissal from €12,000 to €16,000.

Warning for employers

Employees usually face significant hurdles in order to successfully claim constructive dismissal. In general, they are required to exhaust internal grievance procedures before resigning. The employee in this case was successful in his constructive dismissal claim because even though he had not employed all of the internal grievance procedures, the employer’s requirement for a specifically worded medical certificate was found to be unreasonable.

Court halts widower’s case over alleged delay in treating wife

A widower cannot pursue his legal action seeking damages for alleged wrongful death over a hospital’s five month delay before acting on scan results showing his late wife had cancerous lesions in her liver, the Court of Appeal has ruled.

Dolores Hewitt, Kentstown, Navan, Co Meath, had made a full recovery from breast cancer for which she was treated in 2001 at Our Lady’s Hospital, Navan, Mr Justice Gerard Hogan noted.

She was required to attend afterwards for review and an ultrasound scan of February 2007 had shown two lesions in her liver.

Her husband Joseph claimed, due to inadvertence on the hospital’s part, no action was taken on that scan report until a chance meeting with his wife’s surgeon five months later led to further scans which revealed further lesions in her liver.

Mrs Hewitt was then treated for that secondary cancer but eventually died from cancer in June 2010.

Arising from her death, her husband initiated proceedings against the HSE in January 2012 seeking damages for alleged wrongful death under Section 48 of the Civil Liability Act 1961.

In a pre-trial application, the HSE argued any claim for negligence which might have been brought by Mrs Hewitt in January 2012, had she been alive, would be statute barred (not brought within the applicable two year time limit) so her husband’s case, it argued, must also be statute barred.

‘Novel and difficult’

After the High Court found against the HSE, it appealed.

Giving the three judge appeal court’s judgment, Mr Justice Hogan said the case raised a “novel and difficult” point of statutory interpretation of considerable importance.

Mrs Hewitt had two years from July 2007, when she discovered the alleged failure to act on the earlier scan results, to sue but did not, he said. Had she sued within that period, her husband could, under Section 7 of the 1961 Act, have continued that case after her death.

While agreeing with the High Court Section 48 allows for a separate cause of action, he said the wording of Section 48 clearly links recovery of damages to the entitlement of a deceased, but for their death, to have sued in their own right.

Section 48 provides such an action may be maintained by a personal representative of a deceased only if the deceased had been entitled to “maintain the action and recover damages thereof”, he noted.

The question was whether Mrs Hewitt, as of the date of her death in June 2010, could have “maintained” a case for negligence and recover damages. That question could only be answered in the negative as any such action would long have been statute barred by that date, the judge held.

On that basis, he must “reluctantly” disagree with the High Court’s conclusion on this difficult point of statutory interpretation.

Source – The Irish Times

Original Article – http://www.irishtimes.com/news/crime-and-law/courts/high-court/court-halts-widower-s-case-over-alleged-delay-in-treating-wife-1.2703091

Insurers criticised for not pursuing fraudsters

Former High Court president Mr Justice Nicholas Kearns has criticised the State’s loss-making insurers for not seeking the prosecution of people found to have made fraudulent injury claims.

Speaking yesterday at a conference on Ireland’s soaring personal injury costs and insurance premiums, Mr Justice Kearns said: “A particular bugbear of mine is the lack of resolve there appears to be by many insurers to tackle fraudulent claims and fight them to the end.”

When fraud is uncovered in civil cases, typically the claimant withdraws their claim without any further repercussions, he said, with insurers failing to make a complaint to the Garda, who could investigate and refer to the Director of Public Prosecutions.

The issue has been thrown into sharp relief by a recent UK study by Axa, the French insurer, which found that up to a third of respondents have either committed insurance fraud or thought it was justifiable to exaggerate a claim.

Ireland’s insurance industry has been in a state of turmoil in recent years for a number of reasons. Motor claims have been rising as more cars take to the roads in a recovering economy. Court awards have been increasing. And insurers have been less able to rely on investment income to cushion the blow, as they grapple with record-low global bond yields.

In an effort to return to profitability, insurers have hiked motor coverage rates by 35 per cent in the year to May, according to the Central Statistics Office, with house insurance rising by almost 10 per cent.

“Something’s got to give,” Mr Justice Kearns told a room of insurers and lawyers at the event, hosted by stockbrokers Davy and solicitor firms O’Brien Lynam and McDermott Minehane.

The Central Bank said on Tuesday in its latest half- yearly macro-financial review of potential risks in the financial system that all of Ireland’s main insurers reported underwriting losses last year, with an aggregate shortfall of €284 million.

“Contributing to this are increasing claim costs stemming from legislative and judicial changes, and increased economic activity,” it said.

Emer Lang, an analyst at Davy, noted that the average bodily injury award payment in Ireland in 2015 of €22,878 compared with £10,680 (€13,460) in the UK. Insurance Ireland says the average Irish whiplash award, which make up most of motor insurance claims, is €15,000, compared with €5,000 in the UK and €3,000 in France and Spain.

Increase in jurisdiction

The main reason for rising court costs, according to David Nolan, a senior barrister and mediator, was an increase in jurisdiction of various courts in 2014, when the maximum circuit court personal injuries award rose from €38,000 to €60,000.

“Talking anecdotally to my colleagues, to solicitors, to the judges, they absolutely agree that the change in the jurisdiction was the one single most important factor,” said Mr Nolan. “However, [the Government] didn’t actually give the resources to the judiciary . . . to deal with the number of claims [coming through].”

In addition, the book of quantum drawn up by the Personal Injuries Assessment Board in 2004 to provide a guide on compensation that should be given for various types of injury, depending on their severity, is being reviewed only now – following years of criticism by both lawyers and insurers.

Meanwhile, a review by the finance and transport departments on insurance sector policy, amid runaway costs for consumers and businesses, is unlikely to yield results or action until next year.

But there is some light at the end of the tunnel, according to Mr Nolan.

The Court of Appeal, set up in 2014, has recently begun to slash some of the injury awards that have been granted by the lower courts. A €65,000 High Court award granted by Mr Justice Kevin Cross last year, where the claimant suffered “soft-tissue injuries”, was subsequently cut by more than half on appeal.

This year, the Court of Appeal almost halved a €120,000 general damages award given by Mr Justice Anthony Barr to a woman who had sustained shoulder, hand and thumb injuries in a car crash. In March, it also cut by 50 per cent a combined €220,000 High Court personal injury award given to a couple who had sustained injuries when their car was hit by another vehicle.

In the Court of Appeal ruling, Ms Justice Mary Irvine “took issue with the conclusions of the learned High Court judge”, as the injuries to the pair were modest, they hadn’t missed work nor attended a doctor for 14 months after the accident.

“At the moment, the messages are very, very strong,” said Mr Nolan. “Judges of the High Court are being told by the Court of Appeal: ‘Moderate your general damages in these cases.’”

Source – The Irish Times

Original Article – http://www.irishtimes.com/business/financial-services/insurers-criticised-for-not-pursuing-fraudsters-1.2687789