Insights

The Law Reform Commission has put forth a 1,000-page report today, unveiling a proposed statutory and regulatory framework for adult safeguarding. After thorough examination of current domestic laws and policies, along with a comprehensive review of adult safeguarding frameworks in various jurisdictions, the Commission presents two draft bills: the Adult Safeguarding Bill 2024 and the Criminal Law (Adult Safeguarding) Bill 2024.

Findings reveal that existing statutory bodies have limited capacity to intervene in cases of abuse or neglect involving at-risk adults, as evidenced by notable incidents like those at Leas Cross, Áras Attracta, and in cases involving the ‘Grace’ case, the ‘Brandon’ case, and the ‘Emily’ case over the past two decades.

The Commission suggests imposing safeguarding duties on service providers, requiring them to manage their services to prevent harm to at-risk adults, conduct risk assessments, and draft adult safeguarding statements. Additionally, it advocates for the establishment of a social work-led Adult Safeguarding Body with statutory responsibilities for promoting the health, safety, and welfare of at-risk adults. Furthermore, it proposes expanding the regulatory oversight of existing bodies like HIQA and the Mental Health Commission.

Further recommendations include statutory protection for individuals reporting harm to at-risk adults in good faith, along with mandatory reporting duties for certain occupations and professions. Additionally, the Commission proposes the introduction of four new criminal offenses: intentional or reckless abuse, neglect, or ill-treatment of a relevant person; exposure of a relevant person to risk of serious harm or sexual abuse; coercive control of a relevant person; and coercive exploitation of a relevant person.

In conclusion, the proposed legislative reforms outlined by the Law Reform Commission mark a significant step towards bolstering protections for at-risk adults in our society. By introducing comprehensive safeguarding duties, establishing dedicated oversight bodies, and introducing new criminal offenses, these measures aim to ensure the safety, dignity, and well-being of vulnerable individuals. Implementation of these recommendations promises to instigate a paradigm shift in how we approach adult safeguarding, fostering a culture of accountability, vigilance, and respect for the rights of all members of our community.

Olabode Cole v Fima Developments Ltd and Michael Behan    

The Plaintiff in this case was seeking damages of up to €60,000 arising from a Road Traffic Accident on the 22^nd of March 2019, near Heuston Station.  The Defendant’s Insurer, Zurich instructed MDM Solicitors and Frederick Gilligan BL to full defend the matter.

The accident occurred at the traffic lights outside of Heuston Station, directly before the Luas line.  The Plaintiff alleged that the Defendant collided with his vehicle, thereby causing him to suffer a soft tissue injury to his lower back.  In addition, the Plaintiff claimed that he now suffered from nervousness, anxiety, sleep disturbance, and a soft tissue injury to his left knee.

The Plaintiff claimed that while stopped at the traffic lights, in the bus lane, that the Defendant attempted to cross into the left lane and drove into the rear of the Plaintiff’s vehicle.  While originally, an independent witness was willing to cooperate with the Plaintiff’s version of events, he did not give evidence at the hearing of the action.

It was the Defendant’s case that the Plaintiff’s vehicle was travelling in the bus lane, and when the traffic lights turned green, the Plaintiff tried to squeeze in front of the Defendant and entered the Defendant’s Lane.  During cross examination the Plaintiff admitted, that he had at the time been driving for 13 months and had failed his driving test on two occasions.

Ultimately, the Honorable Judge Ní Chúlacháin did not find for the Plaintiff and therefore, dismissed the Plaintiff’s case with costs to the Defendant.

Delaney v Personal Injuries Assessment Board

Supreme Court, 9th April 2024

The Supreme Court has ruled, by a majority of five to two in a landmark challenge, that judge-approved guidelines slashing awards for mainly minor personal injuries have legal effect and are legally binding.

We await the decision of the Supreme Court to be published later today, the following are the key summary points:

1. The majority of the Supreme Court consider that the guidelines have legal effect. The Personal Injury Guidelines are legally binding.
2. Three Supreme Court members define standards that guidelines can only be departed from where unreasonable.
3. The majority of the Supreme Court conclude that s.7(2)g of JC Act is unconstitutional in its present form as being contrary to independence of the judiciary.
4. The majority of the Supreme Court of the court consider that the guidelines were subsequently independently ratified by Oireachtas by family leave act 2021 thus the Pi guidelines passed on 6 March are in force as a matter of law and have thereby been given legal effect.
5. The majority of the Supreme Court find that the transitory provisions of 2021 Act are not unconstitutional and that there were no vested property or personal rights vindicated under any other earlier guidelines than those passed by Judicial Council.

Supreme Court Orders:

• A declaration that s7(2)g is unconstitutional in current form.
• A declaration that the guidelines on 6 March 21 were given force of law by family act 2021 and are consequently in force.
• ⁠A declaration that PIAB acted properly and in accordance with law by applying guidelines in May 2021
• An order that save for declaration of unconstitutionality the appeal is to be dismissed and order of costs made
• Presumptively given these orders that the appellant’s costs to be made against Ireland and the AG

We await the published decision later today to provide a comprehensive review.

 

The High Court has stayed personal injury proceedings until the Plaintiff submits to examination by a further expert orthopaedic surgeon retained by the Defendant despite opposition on the basis of “expert-shopping”.

Mr Justice Holland observed that there was no direct authority as to whether a Defendant is entitled to obtain a second opinion from a certain medical specialty and whether the Plaintiff was obliged to submit himself to examination by that second expert, but recognised that the test is one concerned with fairness and the interests of justice having regard to all the circumstances.

The Court supported the Defendant’s submission that the Plaintiff was confusing the prohibition on calling more than one expert of a given specialty under Order 39, Rule 58(3) of the Rules of the Superior Courts 1986 with the process of disclosure of reports and the question of whether a party is entitled to retain multiple experts of a certain specialty before deciding which (if any) of them to call as a witness.

The Judge stated: “There is no reason, for example, why a Defendant should not retain multiple engineers to inspect a locus of an accident and decide ultimately which of them if any to call as a witness. Indeed, the Defendant makes a reasonable point that, as a Plaintiff is not dependent upon the Defendant’s cooperation in that regard, a Plaintiff can bespeak reports from various doctors — even of the same specialty — before deciding which of them to disclose and thereafter to call as witnesses.”

Agreeing with the Defendant’s reliance on Defender Limited v HSBC Institutional Trust Services (Ireland) Ltd. [2018] IEHC 543 in which Twomey J. accepted that the “one-expert rule” deals with the admission of evidence and not the delivery of expert reports, the court emphasised: “What makes the position as to doctors… different is that the Defendant’s examination is dependent upon the Plaintiff’s cooperation, so the Plaintiff is in a position to object. A Plaintiff…waives certain of his or her rights of privacy as to his or her medical condition… That waiver is however, limited by the scope of the reasonable requirements of the Defendant. What is reasonable depends on all the circumstances assessed in the context of the Defendants’ constitutional rights as to its conduct of the litigation.”

Noting the Plaintiff’s contention that the Defendant’s motion was designed to permit “expert-shopping”, Mr Justice Holland stated that:

“there is no definition of, or black letter rule in terms against, expert-shopping. The parties were unable to cite any Irish cases explicitly addressing the phrase… While it is to be deprecated, questions of degree arise. There is no rule that a party, plaintiff or defendant, in investigating a case is bound irrevocably by the opinion of the first expert consulted. Litigation is adversarial and, within bounds, legitimately tactical. To say that a proposed course of action is driven only by tactical considerations is not to say, necessarily, that it is forbidden.”

Conclusion

Accordingly, the Court stayed the proceedings pending the examination of the Plaintiff by Professor Harty.

 

The High Court recently ordered that a couple which was still living together could in fact satisfy the statutory requirement of living apart, owing to the fact that they lead wholly separate lives to one another.

The parties had reached a compromise and signed an agreement, however, were unsuccessful when they applied to the Circuit Court to have the terms of settlement ruled.  The Applicant appealed to the High Court as she had been diagnosed with a serious illness and the prognosis for the future was bleak.

The parties were married in 2004 and commenced living separately in July 2017 although they continued to live under the same roof. There were two children of the marriage, both teenagers.

Both the parties and the Court agreed that the said Agreement constituted proper provision and that there was no reasonable prospect of reconciliation between the parties.  Although living in the same house, the High Court was satisfied that the parties ought to be considered as living apart due to the following:

• The Applicant had her bedroom upstairs and the Respondent had his downstairs;
• The evidence was that they stay in their bedrooms mostly except when they have to eat, and they do that separately;
• There was no intimate or committed relationship for years and the parties did not spend time together when in the family home;
• The parties did go on holidays in 2018 because the children wanted to go however, they subsequently had taken the children separately on holidays;
• The Respondent spent a lot of time away approximately four days in the week and
• The parties rarely spoke, looked after their own laundry and they avoided using the kitchen at the same time and ate their meals in their respective bedrooms.

Justice Jordan stated that “if a couple can be considered as living apart from one another while living in the same dwelling, provided that they are not living together as a couple in an intimate and committed relationship… it is difficult to see any principled objection to a similar arrangement continuing by agreement after a decree of divorce is granted.”

Concluding that the settlement terms would afford “a solution that will minimize stress and upheaval in a family where the mother has a serious illness”, the court granted the decree of divorce.

Link to the Judgment https://www.courts.ie/acc/alfresco/a3199503-4424-4696-8651-2921f19e319d/2023_IEHC_748.pdf/pdf#view=fitH

If you require any support or advice in relation to the above, please call the office on 021 239 0620 or email niamh@mdmlaw.ie or conor@mdmlaw.ie and a member of our team will be able to assist you.

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