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

Application to Dismiss: Rooney v HSE

 

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.

CAMHS Compensation Scheme

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.

Personal Injury Guidelines: 12 Months Later

 

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).

Kinder Surprise Recall

The Food Safety Authority (“FSAI”)  has been contacted by consumers who have advised that they have purchased some Kinder Surprise Chocolate Eggs which are now being recalled due to a link with an outbreak of salmonella.

The Food Safety Authority of Ireland have said that there have been ten cases of food poisoning linked to the chocolate, a number which have involved young children.  The Irish cases have involved the same strain of salmonella that has been detected in the UK and outbreaks have also been reported in a number of other European countries.

The batches currently being recalled are the Kinder Surprise 20g egg, and the Kinder Surprise 20g 3-pack of eggs, with best before dates between the 11th July 2022 and the 7th October 2022.

The Chief Executive of the FSAI, Dr Pamela Byrne, has advised that if anyone has any of the affected product at home, not to eat it.  The FSAI has said it is liaising with the Department of Health and the investigation into the outbreak is ongoing.  The most common symptom of salmonella food poisoning is diarrhoea, which can sometimes be bloody, other symptoms may include fever, headache, and abdominal cramps.  The elderly, infants and those with impaired immune systems are more likely to have more severe illness.

Retailers are being asked to remove the implicated products from sale and display, points of sale,  wholesalers are requested to contact affected customers and customers have been urged not to consume such products.

If you have been affected, we at MDM can discuss this with you and advise you on your rights and can assist anyone affected.

If you are a wholesaler, retailer or consumer do not hesitate to contact our offices on 021 239 0620 or e-mail us at info@mdmsolicitors.ie for more information.