TABLE OF CONTENTS
Data security breach response plan for insurance companies A good decision for Insurers across the Pond Major overhaul of High Court procedures Supreme Court sets rate for future care costs in personal injury cases Construction disputes - Statute of Limitations uncertainty The updated Book of Quantum does it reflect the reality of prevailing award levels? Appeal Allowed in Wicklow Way case hillwalker's award overturned Baby on board: a flavour of recent Circuit Court infant/minor rulings Important decision on discovery of medical records in personal injury litigation Property insurers beware - liability for dog owners in Ireland
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The insurance industry is navigating challenging times in the face of a changing marketplace, increased regulation and ongoing advances in technology. Insurers must meet the demands of Solvency II and the various national regulators, while satisfying local demands and meeting market conditions. Following the Brexit vote a number of Insurers have decided they cannot wait for the outcome of the exit negotiations and have announced changes in the location of their operations in anticipation of what may happen. In the meantime Irish based insurers are coming to terms with the change in real rate of return and the publication of the 2016 Edition of the Book of Quantum. The issue of Periodic Payment Orders remains a live challenging topic for the Industry. Fraudulent and exaggerated Claims are getting more attention from the Industry and the media, and Insurers expect their panel solicitors to deal with suspect claims in an aggressive manner. Our recent alliance with Northern Ireland firm, John McKee means that Ronan Daly Jermyn is now able to offer our UK insurance clients an all-island legal service. With offices in Cork, Dublin, Galway, London and now Belfast, we are the only Irish firm that offers such a broad based all-island service. Technology continues to be a significant area of focus for the firm with the introduction of new resources allowing for easy collaboration with clients and faster, easier access to claims information and claims handling. Ronan Daly Jermyn is committed to providing its insurance clients with regular insights on topical legal developments and current issues in the insurance industry. In the following issue of Insurance Insights, we review some recent case decisions and their impact on the industry, best practices for data security breaches, and take a look at the updated Book of Quantum. We hope you find this issue of Insurance Insights helpful and informative. If you would like to discuss any of the issues we have covered in this edition please contact us.
DATA SECURITY BREACH RESPONSE PLAN FOR INSURANCE COMPANIES
Authors: Jamie Olden and Finn O'Brien
"Identify what breach has occurred and take "appropriate steps
THE CURRENT LAW Data security breaches are becoming the norm rather than the exception and are therefore increasingly a problem for insurers. An insurance company will almost certainly be a data controller and the Data Protection Acts 1988-2003 therefore impose obligations on Insurers to take "appropriate security measures" to protect the security of their data. Insurers should ensure they comply with this obligation as the disruption, publicity and brand damage that can be caused from a breach is significant.
SAMPLE RESPONSE PLAN
The biggest problem with data security breaches for many insurers is the lack of a response plan on how to deal with the breach. In the event of a breach, Insurers should take the following general steps:
Consult your company's Security Breach
This is a clear, pre-prepared plan setting out the initial and
immediate processes that should be put in place to secure systems and prevent further damage being caused
by the breach.
Contact the pre-assigned Response
When a data breach occurs, a pre-designated Response Team should
be ready to act.
Identify what breach has occurred and take
Any response should be a full company response
so that the entire company
is working in sync.
Consider your notification requirements
The Data Protection Commissioner has published guidelines, Personal
Data Security Breach Code of Practice which sets out a data controller's notification obligations. If there is any doubt, the Code states that the data controller should report the incident to the Office of the Data Protection
"An insurance company will almost certainly be a data "controller
Consider the Public Relations implication
and your response
Data controllers are not currently required to notify affected data subjects of a breach but companies should consider how they deal with informing those affected.
Record all actions taken
Keeping a record of every part of response to a data breach can result in the gathering of vital
information for dealing with future breaches.
Review the outcome of the breach
After every breach, an assessment should be
completed on the effectiveness of the response and where improvements can
Plan on how such a breach can be avoided
in the future
A detailed review of the breach, the response, and the final assessment and using the information to plan for the future is often the
best form of defence to future data breaches.
Forthcoming Legislative Changes on Notification Requirements From 25 May 2018, the General Data Protection Regulation will impose stricter obligations around data security and more onerous notification requirements for insurers. Article 33 of the GDPR will introduce an obligation to report all breaches to the Data Protection Commissioner "without undue delay" but not later than 72 hours after becoming aware of it.
Notification will not be required where the breach is unlikely to result in a risk to the data subjects but notification may be required to be made directly to data subjects in certain circumstances.
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A GOOD DECISION FOR INSURERS ACROSS THE POND
Authors: Uilliam Lorcin and Jennifer Noctor
"If insurance had been in place, cover for the claim would have been "declined
An interesting decision of the Court of Appeal in a U.K. case Channon (t/a Channon & Company) v Ward (t/a Ward Associates)  EWCA C IV 13 looked at whether investment activities would have been covered by a professional indemnity insurance policy for an accountant.
Mr Channon, a chartered accountant who was also a co-director of a property company, persuaded a number of people to invest over 1 million in his property company. The property company subsequently became insolvent and the investors launched professional negligence proceedings against Mr Channon, suing him for providing negligent investment advice.
The investors had hoped that Mr Channon's professional indemnity insurance would meet their claims. However, insurance cover had not been obtained by Mr Channon's broker, Mr Ward so he issued separate proceedings against him, which were undefended. The investors became aware that judgment had been entered against Mr Ward in default and that he in turn was uninsured in respect of the consequences of his own negligence.
Notwithstanding this, the investors decided to pursue their claim
against Mr Channon, in the hope that even if Mr Ward was unable to meet the judgment, they could pursue a claim for compensation pursuant to the Financial Services Compensation Scheme, as Mr Ward had been trading as a regulated insurance broker.
In light of this, Mr Channon agreed to settle the investors' claim against him, notwithstanding that he was confident, he had no liability. The proceedings were stayed for a year and he authorised the investors to pursue in his name his claim against Mr Ward.
When damages were being assessed in respect of the case against the broker, the Judge stated that if insurance had been in place, cover for the claim would have been declined as Mr Channon had not been acting in his capacity as an accountant, but rather as a Director of the property company. There were also two relevant exclusion clauses in place in the insurance policy which insurers would have
availed of, namely "express or implied warranties relating to the financial return of investments" and "trading losses or liabilities incurred by any business managed by the Claimant."
The Court was then required to determine the difference between the position Mr Channon was in at the time of hearing and compare that with the position he would have been in had he been insured. The Judge found that the damages which Mr Channon was entitled to on a default judgment were nil. Mr Channon appealed this decision.
The investors claim was contrived to engage Mr. Channon's professional indemnity cover
"While the broker was negligent in failing to obtain insurance, no loss was caused as the investors' claim would not have "been covered
On Appeal, the argument was made that Insurers would have had to obtain legal advice and that cover would have been provided, not least as reputational issues for the Insurers would have been relevant. The court rejected this as speculative and said that the investors were seeking redress for their disappointment at the performance of their investment, not for the consequences of reliance upon professional advice by a chartered accountant of whom most of them were not even clients. This would have been a claim which Insurers would have resisted from the outset on the basis that it was only contrived to engage Mr Channon's professional indemnity cover. The appeal was dismissed.
Despite an elaborate strategy by the investors to recoup damages, the Court was satisfied that Mr Channon's involvement and any advice given was not as a Chartered Accountant but as a Director of the property company. Furthermore, he had advised the investors to seek independent professional advice before investing. Therefore, while the broker was negligent in failing to obtain insurance, no loss was caused as the investors' claim would not have been covered by the Accountant's insurance policy in any event.
While one would have expected awards in such circumstances, this is an example of the court considering not only the details and underlying facts of the case, but also the motivation of the parties, which resulted in a great decision for Insurers! As both jurisdictions are covered by common law, this case is likely to be persuasive in the Irish Courts also.
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MAJOR OVERHAUL OF HIGH COURT PROCEDURES
Authors: Uilliam Lorcin and Charles Waterhouse
"Legal practitioners will see a somewhat increased "work load
The Rules of the Superior Courts (Chancery and Non-Jury Actions and Other Designated Proceedings: Pre-trial procedures) 2016 ("the New Rules") were signed into law on 5 April, 2016. The New Rules are to be construed together with the existing Rules of the Superior Courts and apply to all High Court proceedings except those in the Commercial, Competition and Personal Injury Lists. It appears that the New Rules will apply to both new and existing cases.
The New Rules introduce a range of new measures to include:
1 Pre-Trial Powers (Rule 4) A Judge can now regulate a case pre-trial with a view to minimising costs.
2 Consultation Process (Rules 6 & 9) There is a provision for case management conferences and pre-trial conferences which will allow the immediate representatives on both sides to address various issues with the Trial Judge which will narrow the issues ahead of the trial date.
3 Specific Appointment of List Judges/Registrars (Rule 3) The New Rules provide that specific Judges may be appointed to specific lists. This has proved to be very efficient in the Commercial Court.
4 Witness Statements (Rule 17) There is an obligation (unless the Judge decides otherwise) that the parties to a case must exchange witness statements at least 30 days before trial. This will lead to both sides having a much better idea as to the other sides' strengths and weaknesses and should lead to earlier settlement of cases.
5 Penalties for Undue Delay (Rule 7) This allows for Judges to penalise either party as to costs where there is undue delay on one side. The Judge may direct that either party attend before him to explain the delay.
6 Electronic Documents (Rule 22) This provides for documents to be served and exchanged by electronic means directly to the Judge's Registrar which saves considerable time and costs in relation to administration.
"These New Rules will benefit bodies such as insurance "companies
The provisions introduced by the New Rules are very much in line with rules already in place in the Commercial List and in Personal Injury actions. However, a number of provisions are not utilised in practice. It will be interesting to see whether these provisions will be fully implemented by Judges.
Legal practitioners will see a somewhat increased work load but this initial work load will be considered justified by the likely quicker litigation and potential settlements.
The New Rules were due to come into force on 1 October 2016 but the practical application of certain aspects of the New Rules to include pre-trial case management has been delayed pending the provision of appropriate necessary resources.
Two months advance notice will be given prior to the application of the New Rules.
Once in operation the New Rules will be akin to those in the Commercial division of the High Court where these processes operate swiftly with an emphasis on mediation. These New Rules will benefit bodies such as insurance companies with high volumes of litigation that do not come within the remit of the Commercial Court and so are prone to lengthy litigation delays.
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SUPREME COURT SETS RATE FOR FUTURE CARE COSTS IN PERSONAL INJURY CASES
Authors: Lisa Dennehy and Cliona Power
"Enormous financial consequences for the State and the insurance "industry
Insurers will be interested to note that the Supreme Court recently has refused to hear an appeal on the `rate of return'/`discount rate' for future pecuniary losses in Ireland.
The law in Ireland requires the Court to award a lump sum to compensate a plaintiff for all past and future losses. When calculating the payment to be made to a plaintiff for future care costs or other losses, the Court would `discount' the award by a percentage, being the return that a plaintiff could expect to make by investing the lump sum in a relatively risk free manner.
In the 2003 case of Boyne v Dublin Bus the `discount rate' was set at 3%. However in Gill Russell v HSE, Mr Justice Cross handed down a landmark judgment which reduced the rate to 1% for future care costs and 1.5% for other future pecuniary losses. The Court of Appeal affirmed this decision in November 2015. The effect of this was to radically increase the value of future awards of damages.
The HSE sought leave to appeal the decision to the Supreme Court. It argued that the decision was of general importance with huge financial implications for the State and the insurance sector.
The Supreme Court refused to hear the appeal. It held that the HSE had not met the constitutional threshold to warrant an appeal. Interestingly, the Supreme Court did not rule out accepting an appeal on the issue in the future, if a case met the requirements for an appeal.
Gill Russell v HSE
for future care
for future pecuniary losses
The Supreme Court's ruling means the Court of Appeal's decision is now binding law
policies that include cover for serious injury, such as motor, public liability and employer
. Earlier this year in the UK, the Ministry of Justice
A plaintiff is not an ordinary
liability policies, are affected.
lowered the `discount rate'
prudent investor and will be
The cost of higher lump sum
from 2.5% to 0.75%. While
entitled to invest the sum in the most risk averse way available. Public policy should play no part in the assessment of damages.
awards will likely result in increased premiums.
This determination will put
the Director General of the Association of British Insurers has called it a
Claims for future pecuniary loss
pressure on the Government to
"crazy decision" the
will be discounted at 1.5% and
legislate for Periodic Payment
Ministry of Justice stated
claims for future care at 1%.
Orders. When the Civil Liability
that claimants "must be
... This has enormous financial consequences for the State and
(Amendment) Bill 2017 is passed into law, the provisions in this legislation for PPO's will largely
treated as risk averse investors, reflecting the
the insurance industry. Along with negate the need for consideration
fact that they are
medical negligence insurers, insurance companies who sell
of discount rates in catastrophic injury cases.
financially dependent on this lump sum".
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CONSTRUCTION DISPUTES STATUTE OF LIMITATIONS UNCERTAINTY
Author: Donal Twomey
"Negligence without damage is not "actionable
In March 2016, the Court of Appeal overturned the High Court decision Brandley and WJB Developments Limited v Hubert Deane T/A Hubert Deane & Associates and John Lohan T/A John Lohan Ground Works Contractors (High Court 2010/10994P and Appeal 2015/245) in which negligence proceedings regarding a construction dispute were held to be statute barred. In its decision, the Court of Appeal set out some guidance on when the clock begins to run on negligence claims which has resulted in some uncertainty in this area.
The case concerned two houses. The first defendant was the engineer who issued certificates of compliance. The second defendant was the contractor who built the foundations of the houses.
Generally, negligence proceedings must be commenced within six years from the date the cause of action accrued. In this case, the proceedings were commenced over six years after both the laying of the foundations and the engineer's certification.
However, the commencement date was less than six years from when the plaintiffs became aware of the damage.
The key dates were:
MARCH 2004 The foundations of the houses were completed
The plaintiffs noticed cracks in
The engineer issued his certificates of compliance
The plaintiffs issued proceedings
"...creates a distinction between defective work and actual "damage...
The parties agreed that the test for when the cause of action accrued was "when did the plaintiffs suffer damage by reason of the negligence of the defendants". The plaintiffs claimed that although the negligent installation of the foundations and the negligent certification were outside the six year time limit, the damage that resulted was not.
foundations were defective, they did not cause damage until December 2005.
Last June, the Supreme Court granted right to an appeal. The question is the time starts to run for the purpose of the Statute of Limitations in property damage claims from when:
The High Court dismissed the claim as being statute barred, holding that the cause of action accrued the day the foundations were laid.
1 The damage is manifest;
The Court of Appeal overturned the High Court decision. It held that negligence without damage is not actionable. The Court found that the fact that the foundations were defective was not a cause of action in tort, and so the Statute of Limitations could not start to run until damage had actually occurred. While the
2 The damage is discovered; or
3 The damage occurs
The case was before the Supreme Court for hearing on 26 April 2017 and judgement is awaited.
The decision of the Court of Appeal re-affirms that a cause of action in damages, for non-personal-injury claims, accrues only at the time that "damage" occurs, and creates a distinction between defective work and actual damage. Crucially for Insurers of construction professionals, it is possible that they may face a liability for defective work more than six years after the work was carried out.
However, an awaited Supreme Court decision will determine whether the apparent extension envisaged by Brandley is endorsed, modified or limited to its specific facts. Watch this space!
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THE UPDATED BOOK OF QUANTUM
DOES IT REFLECT THE REALITY OF PREVAILING AWARD LEVELS? Authors: Claire Murray and Lisa Mulloy
"The Court of Appeal are adopting a more robust "approach
The Book of Quantum has been updated for the first time since it was first introduced back in 2004. The guide is intended to represent a more accurate reflection of compensation paid out for personal injuries. The analysis was conducted in respect of compensation awards in 51,000 closed personal injury claims from 2013 and 2014, which were handed down by the Courts, insurance company settlements as well as data collected from the Injuries Board. It is important to remember that the Book of Quantum is to be considered as a "guide" only for assessing potential awards and not as a target or the "going rate" for awards
WHAT HAS CHANGED IN THE LAST 12 YEARS?
Firstly, the new Book of Quantum has seen the introduction of 13 new types of injuries which include concussion, injuries affecting sight and food poisoning. The classification of the severity of injuries has been revised and renamed with injuries now being reclassified as 'minor', 'moderate' and `moderately severe'.
Secondly, from a broad overview from a figures perspective, 35 categories of injury have seen a rise in values with the same number of categories seeing a reduction or a marginal change. Upon further review, it is noted that the lower and upper range figures in relation to 20 out of the 81 specific injury types have increased across all injury severity classifications in contrast with only three specific injury types which have seen a reduction.
The value increases in the Book of Quantum is in stark contrast to the jurisprudence which has been emanating from the recently established Court of Appeal which has reduced a number of High Court awards by up to 50%. However, one needs to bear in mind that the analysis conducted in respect of the new Book of Quantum relates to awards in 2013 and 2014 and thus, has not taken into account the below judgements of the Court of Appeal which held its first sittings in November 2014.
"...the Courts have had scant regard "to the Book
THE COURT OF APPEAL A DIFFERENT APPROACH EMERGING?
In Shan non v Sullivan, a Court Of Appeal decision delivered in March 2016, the Court undertook a detailed analysis of the High Court's award to a couple who sustained modest injuries in an RTA and found it to be excessive and reduced the awards from 90,000 to 40,000 and 130,000 to 65,000. In Nolan v Wirenski, the Court of Appeal found that the Plaintiff's injuries were relatively
modest in the wider spectrum of personal injury claims and reduced the High Court award from 120,000 to 65,000.
A common trend emerging is the Court of Appeal's primary focus on what was the most appropriate and fair award for the specific injuries sustained. Three main principles have emerged:
It is evident that the Court of Appeal are adopting a more robust approach to the assessment of personal injury awards rather than relying on other precedent cases upon which the Book is based. It is with regret that the new Book of Quantum does not appear to incorporate the most important principle that `minor injuries should attract modest damages'. This begs the question as to whether the updated Book of Quantum is already out of date?
1 Court must carefully evaluate the Plaintiff's evidence and the accuracy and reliability of same.
2 Court should not focus on the diagnoses/labels attached to the injuries sustained, but rather the extent of pain and suffering actually incurred by the Plaintiff.
3 Minor injuries should attract modest damages, moderate injuries moderate damages, severe injuries significant damages and extreme or catastrophic injuries damages in and around 450k.
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APPEAL ALLOWED IN WICKLOW WAY CASE
Authors: Lisa Dennehy and Deborah Griffin
"a reminder to walkers and hikers that there is an onus upon them to take responsibility "for their own safety
On 17 February Mr Justice White allowed the Appeal by the State in the "Wicklow Way Case". The High Court Decision will bring great relief to our National Parks, local authorities and private land owners, and serves as a reminder to walkers and hikers that there is an onus upon them to take responsibility for their own safety.
In April 2016, Judge Linnane found the National Parks and Wildlife Service liable to pay compensation to Teresa Wall who sustained injuries when she tripped and fell on a boardwalk made of railway sleepers. The Plaintiff argued that the Defendant was negligent and had failed in its duty to maintain the sleepers, which were damaged; holes had formed in places and the chicken wire covering the sleepers was either worn away completely or in poor condition.
The Circuit Court Judge found that the Plaintiff was a "recreational user" and that the Defendant did not take reasonable care to maintain the boardwalk in a safe condition. No contributory negligence was found against the Plaintiff and an award of 40,000 in respect of General Damages was made.
An appeal was lodged. It was feared that this Decision would place an onerous duty on landowners to maintain lands to the extent that any risk to walkers should be eliminated entirely. Indeed, as a result of the Circuit Court Decision, many private land owners along the Wicklow Way had considered withdrawing their consent to walkers wishing to explore this amenity.
Under Section 4(1) of the Occupiers Liability Act 1995 an occupier is merely obliged to not intentionally harm a recreational user or act in reckless disregard of his/her safety. While the Plaintiff accepted she was a "recreational user", she submitted that the occupier owed an additional duty to take reasonable care to maintain the boardwalk because it was a structure provided primarily for recreational use, per Section 4(4) of the Act.
The Defendant submitted that the Plaintiff failed to show that reasonable care was not taken in these circumstances: she was an experienced hill walker on a moderate mountain trail, which was not unsafe and accordingly, the Defendant was not bound to repair the visible indentations referred to.
"...conduct of high social utility ought not to be assessed as onerously as "other conduct.
THE HIGH COURT'S CONCLUSIONS
The Court agreed with the Plaintiff that Section 4(4) is independent of Section 4(1) and it imposes a more onerous duty on an occupier. When invoking Section 4(4), the Plaintiff must establish that:
(i) the boardwalk is a structure; (ii) the structure was provided for use primarily
by recreational users; (iii) the structure was unsafe; and (iv) this "unsafeness" was attributable to the
Defendant's failure to exercise reasonable care to maintain the structure.
The Court found that the first two points were satisfied but it did not accept that Section 4(4) imposed an absolute duty of care: the standard is one of reasonableness to be assessed according to the circumstances. Vigilance is to be expected from hill-walkers in isolated locations where maintaining structures is more burdensome.
Mr Justice White noted the well-established principle that conduct of high social utility ought not
to be assessed as onerously as other conduct. To impose unreasonably high standards in such cases could result in a "chilling effect". He found that the boardwalk served two important purposes: to minimise the erosion of a protected habitat; and to provide access for all entrants to include recreational users to a site of great natural beauty and significance.
In these circumstances the Court did not find the Defendant negligent in not filling the indentation or replacing the damaged sleepers and thereby dismissed the Plaintiff's claim.
This is an important decision for the National Parks and Wildlife Service, local authorities and for private land owners who might have walkers traversing their land.
1 Teresa Wall v National Parks and Wildlife Service [Record No. 2016/95 C.A.]
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BABY ON BOARD
A FLAVOUR OF RECENT CIRCUIT COURT INFANT/MINOR RULINGS Authors: John Buckley and Julie Anne Long
"When put before the Court for ruling, the sum was deemed to be "insufficient
LAW AND PRACTICE IN IRELAND IN RELATION TO PERSONAL INJURIES CLAIMS TAKEN ON BEHALF OF CHILDREN In Ireland, a child under the age of 18 is known in law as "a minor". Any settlement figure agreed between the parties in a civil personal injuries action taken on behalf of a minor must be approved and ruled by the Court. This includes any figure awarded by the Injuries Board. The approved figure/monies are then lodged with the office of the Accountant of the Courts of Justice until the child reaches the age of 18. An application can be made to the Court for money to be paid out early for a purpose related to, for example, the Plaintiff's education or another purpose which the Court may deem appropriate.
RECENT CIRCUIT COURT RULINGS IN THE SOUTH Cases of this nature are often very difficult to quantify. Not only are insurers faced with the value attributable to scarring which in itself needs to be considered on a case by case basis, but significant weight is also placed on the psychological effects borne by the injured party which can result in a dramatic increase in the overall award:
An 8 year old Plaintiff allegedly suffered psychological injuries as a result of a road traffic collision. He had increased anxiety relating to travel, new onset incontinence approximately 2 days per week, school avoidance behaviour and his general behaviour deteriorated. He had a history of autism spectrum disorder and was more susceptible to the type of injury suffered. This matter settled on negotiation for the sum of 25,000. However, when put before the Court for ruling, the sum was deemed to be insufficient. An offer of 35,000 was subsequently ruled by the Court with Judge commenting that this figure was more like it!
An 11 year old Plaintiff alleged he had suffered pain to his chest, shoulder, arm and hand for a few days post-accident. His G.P. indicated he also had some mild psychological upset. A child psychologist commented that poor sleep, nightmares, outbursts of anger and travel anxiety post-accident showed evidence of PTSD. The infant Plaintiff was not expected to recover until 24 months post-accident. This matter settled for the sum of 10,000 and was ruled by the Court. Of note, the Court indicated that this was on the lighter side of what could be awarded.
A 5 year old Plaintiff was a passenger in a vehicle which was stationary when rear ended. It was alleged that she developed night and day time wetting which continued on a nightly basis for 6 months. The Plaintiff's G.P. said it was unclear whether the Plaintiff would make a full recovery. She had been dry by night for one year pre-accident. The Defendant's G.P. was of the opinion that approximately 10% of 5 year olds bed wet on a regular basis without any apparent cause. However, it was likely that the accident was the precipitating factor here and it should resolve spontaneously. This matter settled for the sum of 12,500. However, when put before the Court it was stated that the sum of 17,500 would be more sufficient. The case later ruled at that level
In light of recent rulings, it would appear that there is relatively little guidance for either party in foreseeing what will be ruled by the Court and it is ultimately at the discretion of the Judge.
" It was likely that the accident was "the precipitating factor
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Julie Anne Long
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PERSONAL INJURY LITIGATION
IMPORTANT DECISION ON DISCOVERY OF MEDICAL RECORDS Authors: Fergus Long and Brian Morrissey
BACKGROUND Ronan Daly Jermyn represented the Defendant in the High Court case of Rosemary Power v Tesco Ireland Limited (High Court Record No. 2015/3682P). The claim arose out of a work place accident which occurred on 22nd July 2014, wherein it was alleged that the Plaintiff suffered personal injuries. The primary complaint related to a wrist injury. In Replies to Particulars the Plaintiff confirmed that she had not suffered any relevant injuries prior to or subsequent to the accident the subject matter of the proceedings
DECISION IN DISCOVERY APPLICATION
Discovery of the Plaintiff's pre-accident medical and post-accident medical records was sought and the Plaintiff's solicitors refused to make voluntary discovery of the medical records requested. A Motion for Discovery came before Mr. Justice Max Barrett in the High Court, on 27th June 2016.
Mr Justice Barrett granted an Order for discovery and set out the criteria required when seeking discovery of medical records, namely:
A There should be a medical examination of the Plaintiff by the Defendant's doctor (with the usual right of the court, as acknowledged in McGrory, to grant a stay);
B If that examining doctor forms the opinion that there is some pre-existing condition and/or;
C There is some other evidential indicator required to suggest a Plaintiff's prior medical history to be relevant. In that instance access to prior medical history will typically be ordered, subject to any such time constraint as appears appropriate in the particular circumstances arising so as to ensure that only that which is relevant and necessary is discovered and oppression avoided."
"from a defense "perspective
In addition, a three year default time period for pre-accident medical records was ordered.
This decision has provided a welcome clarity on when medical records should be sought.
"Suggested a three year default time period for "pre-accident medical records
The Plaintiff has appealed the Order of Mr. Justice Barrett dated 11th July 2016 to the Court of Appeal. The appeal is listed for hearing on the 27th November 2017.
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PROPERTY INSURERS BEWARE
LIABILITY FOR DOG OWNERS IN IRELAND: AN OVERVIEW Authors: Brendan O' Connell and Elizabeth McSweeney
" "on the owner
"BEWARE OF DOGS" The extent and scope of exposure faced by dog owners in Ireland is often something given little or no consideration when taking in a dog. Recent case law has again brought to light the long standing principles in this area which dog owners and more particularly their insurers, ought to be aware of.
THE SCIENTER PRINCIPLE
Prior to the enactment of the Control of Dogs Act 1986 (hereinafter the "1986" Act) the "scienter" principle was often used to pin liability on an owner for loss or damage to persons or property. This required the Plaintiff to prove knowledge on the owner's part that the animal in question had displayed a "mischievous propensity" or was pre-disposed to carrying out the danger complained of.
Following the enactment of the 1986 Act, cases of this nature became significantly easier to litigate due to Section 21 of the 1986 Act which imposed strict liability on the owner, thus negating the requirement to prove knowledge on their part that their dog was prone to such behaviour. Section 21 establishes liability on the part of the owner for injury, loss or damage caused to persons and/or property and recent case law in Ireland demonstrates the Courts strict adherence to the legislation in imposing liability on owners and awarding significant damages to the injured party as a result:
In the recent High Court decision of McCreary v Morris, a postman who sustained scarring to his leg and psychological trauma as a result of an attack by a German Shepard whilst delivering mail was awarded 100,000 in damages.
The Circuit Court in considering a minor ruling in February of this year awarded 40,000 to a schoolgirl who had been attacked by a neighbour's dog. In ruling the award, Mr. Justice Groarke reiterated the need for dog owners to take responsibility for their pets in public places.
Cases of this nature are often very difficult to quantify. Not only are insurers faced with the value attributable to scarring which in itself needs to be considered on a case by case basis, but significant weight is also placed on the psychological effects borne by the injured party which can result in a dramatic increase in the overall award:
In the case of Clodagh Walshe (A Minor) suing by her Mother and Next Friend, Marie Walsh v Neville Howard and Frances Foley, Mr. Justice MacEochaidh in taking into consideration both the physical and psychological effects of a dog attack on a minor, ruled a settlement in the sum of 207,500 plus costs in favour of the Plaintiff's legal team.
"It would be excessive and unreasonable to impose liability on the local "authority
LIABILITY FOR "OWNERS"
Whilst in the majority of cases the registered owner is likely to be found to be the responsible party, it is noteworthy that owners under the 1986 Act have been broadly defined and can include the occupier of any premises where the dog in question is kept or permitted to live or remain at any particular time thus broadening the scope of potential defendants in any given action. The Courts have demonstrated a practical approach in applying the definition under the 1986 Act. In a recent Circuit Court case taken against South Dublin County Council, the Circuit Court heard evidence of the Plaintiff who was
walking in her local park and who had been attacked by a loose dog whose owner was unknown. The Plaintiff attempted to argue that in circumstances where the dog's owner was unknown the local council should be considered the owner under the Act having allowed the dog to run loose in its park. In finding in favour of the Defendants, Mr. Justice Groarke held that it would be excessive and unreasonable to impose liability on the local authority as to do so would be to impose an obligation on them to ensure no dogs other than those on leads ever entered the park.
Defendants in cases of this nature and moreover the Insurers, whilst already facing an uphill battle in contesting cases under the 1986 Act, are further hampered by the Plaintiff's ability to rely on the "scienter" principle, general principles of negligence and where circumstances permit, the Occupiers Liability Act 1995. Case law suggests there is little recourse left for a Defendant in defending such cases, save and except contributory negligence on the Plaintiff's part where applicable.
Attempts at using an Act of God and/or an act of a third party have also been used in defence of these proceedings in the past. The reality is, however, liability will more often than not attach to the owner, provided he/she can be found, and the Courts have been consistent in this approach.
Brendan O' Connell
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