Insights

Please see recent case law in Ireland, please see below two recent judgements delivered, the first one in the court of Appeal dismissing a Plaintiffs claim following a fall while using an escalator in an airport. The second the dismissal of an allegedly fraudulent claim in the circuit court. A welcome update indicating that the Court of Appeal can be open to dismissing claims, where liability is an issue and the Circuit court is willing to dismiss fraudulent claims.

 

Court of Appeal :

Report Irish Times 2016, Woman’s €40,000 award for airport escalator fall overturned, Judge says it is ‘only commonsense’ that a person would use handrail for their safety

Elizabeth Lavin (69) lost her balance and fell on the escalator to departures in Terminal 2 at Dublin Airport on November 2nd, 2011. She was given a €40,000 award for injuries received but this has now been overturned by a judge.

 

A woman’s €40,000 award for injuries received in a fall on a Dublin Airport escalator has been overturned by the Court of Appeal.

Elizabeth Lavin (69), of Blackhall, Calverstown, Kilcullen, Co Kildare, has already received a part payment of €25,000 from DAA which was the basis on which the authority was permitted to bring an appeal against the award.

When Kieran Fleck SC, for the DAA, raised the matter of the part payment with the appeal court, Mr Justice Michael Peart said it appeared the court had no function in that regard and it may have to be brought back before the High Court.

He also said it “may be possible for the parties to come to some mutual arrangement”. The judge made the comments when he put back the question of costs of the case to another day.

Ms Lavin lost her balance and fell on the escalator to departures in Terminal 2 on November 2nd, 2011. She received what the court described as a “nasty” injury to her head and other soft tissue injuries.

She was intending to fly to the UK for a family funeral and was accompanied by her sister-in-law (81) and niece. Ms Lavin was behind the two women on the escalator with her carry-on luggage immediately on the step behind her.

The appeal court said CCTV footage showed her left hand was not gripping the handrail and she was holding what appeared to be her boarding card. The footage made clear that turning around to adjust her carry-on bag in some way caused her to fall over and down the escalator.

Emergency button

Another member of the public pushed the emergency button halting the escalator.

The High Court’s Mr Justice Michael Hanna, in April 2015, awarded her €60,000 but found one-third contributory negligence bringing the award to €40,000. A three-judge appeal court said it could not agree.

Mr Justice Peart said the sole basis for the finding of negligence was that the defendant failed to bring to Ms Lavin’s attention, by adequate signage, that she could have taken one of the lifts rather than the escalator.

The judge said the lifts are in the immediate vicinity of the escalator and clearly visible because they are behind a feature blue transparent glass wall.

There was no evidence Ms Lavin ever brought the nervousness she had about using the escalator to the attention of her two companions , both of whom were seen in the CCTV footage confidently making their way to the escalator. There was also no evidence Ms Lavin gave a thought to asking nearby airport staff, wearing hi-vis jackets, if there was a lift, the judge said.

“She simply followed her sister-in-law and niece to the escalator without any apparent unease or hesitation”, he said.

Mr Justice Peart said the duty of care the owner/occupier of a premises has is restricted to taking all reasonable steps to avoid injury which is known to exist or which ought to be known to exist. It was a duty to prevent damage from “unusual danger”.

Unusual danger

It cannot be said the escalator presented an unusual danger, such that there was an obligation to warn someone of any particular danger in using it, beyond providing normal signage, he said.

“Indeed, its is only commonsense that on a moving escalator the person would use the handrail in order to take reasonable care for her own safety,” he said.

There was a handrail and there was also a sign directing passengers to the lifts.

The High Court decided the accident would not have happened if there was adequate signage.

Mr Justice Peart said this was incorrect as a matter of law. There was a disconnect between the adequacy of the signage, even if one accepts it was inadequate, and the proximate reason for her fall, he said.

He also said the High Court was wrong to consider the DAA failed in its duty of care in relation to signage.

The escalator was safe and in compliance with the relevant standards, he said.

 

Circuit Court:

AN ALLEGEDLY FRAUDULENT car crash, said to closely fit a pattern of six suspicious accidents that could cost up to half a million in damages and costs, was thrown out by a judge yesterday at the request of Zurich Insurance.

Barrister Paul McMorrow told the Circuit Civil Court that throughout the chain of apparently linked accidents comprehensive insurance policies would be taken out only days before the accidents followed by the disappearance of the drivers and the old cars they used in rear-ending collisions.

Mr McMorrow told Judge Jacqueline Linnane:

The driver in the case before the court has since become untraceable, all part of a pattern of six accidents which happened in darkness all at “T” junctions in remote locations throughout the country without any independent witnesses.

Mr McMorrow, who appeared with DAC Beachcroft Dublin, solicitors for Zurich Insurance which was defending the claim on behalf of the Motor Insurers Bureau of Ireland, said it was usual for potential defendants in these cases to quickly become untraceable.

David Culleton, a solicitor with DAC Beachcroft Dublin, stated in a sworn affidavit that Lilija Timermane had been a passenger in a car on a remote road near Portlaoise, Laois, only three days before Christmas 2012.

Andrius Bajoras, the purported owner and driver of a 12-year-old Rover car had crashed into the back of the car in which she was travelling. Bajoras purported to have taken out insurance cover shortly before the accident with Zurich Insurance, but neither he nor the old Rover had been traceable since.

Mr McMorrow told the court that Timermane had failed to turn up for two examination appointments with the Bureau’s Medical Advisor Robert McQuillan and had failed to deal with a Notice for Particulars from DAC Beachcroft Dublin.

Counsel said Andrius Bajoras had purportedly taken out insurance with Zurich 26 days before the accident “for what appears to have been fraudulent purposes.” Bajoras had been uncontactable since shortly after the crash.

The court heard that the plaintiff Timermane had not provided a proper address and the Department of Social Protection had “absolutely no record of her.” The address she had provided had been very similar to a non-existent address provided by Latvian Igors Jurans, a plaintiff in another similar case, and about whom the Department of Social Protection similarly had no records.

Judge Linnane dismissed Timermane’s claim with costs to the MIBI. The remaining cases are being further investigated and may yet be abandoned by the claimants.

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

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.

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