Sport & assault a bad sporting mix!
A recent personal injuries case heard in the High Court in Dublin brought the focus
what is allowed to pass as part of a contact sport and what constitutes an assault.
The case involved what was found to be an assault causing serious facial injuries to a soccer player.
The injury turned out to be a fractured jaw which caused considerable pain & discomfort to the injured player.
Now sport of all sorts has always included the consent of ‘volenti’ or consent to reasonable force, be it in a tackle or other challenge.
This case showed that by striking another player with intent to harm him outside the rules of the game, that the assailant was responsible for the harm caused and should compensate the victim.
So far so good, but when is unreasonable force actionable in the courts.
Some of the tackles we see in GAA, rugby and other sports run close to the edge of assault.
What is clear is that if deliberate intent to harm an opponent can be shown to a court
the person responsible may be exposed to a claim for damages for any injury sustained.
Other matters as to whether the assailant has the financial wherewith all to pay any court award it must also be considered as otherwise the courts judgement may simply be a paper judgment with the victim recovering nothing!
In the recent case in the High court compensation of €47,000 was awarded for the personal injuries suffered by the innocent player.
The role of insurance is unlikely to assist as few policies if any are likely to provide insurance cover which allows a policy holder to intentionally injure another!
The issues raised by this interesting case will no doubt reappear in the future
Learner drivers to face new strict rules.
In the wake of the multiple deaths in recent road traffic accidents new regulations
are to be introduced to make compulsory training for learner drivers a fact of life.
Recent car crashes, fatal accidents and serious injuries have featured in our newspaper headlines
In response the RSA (road safety authority) stated that a new gradation driver licensing system would shortly be introduced.
It is believed that the scheme will require new drivers to maintain a log book of hours spent practising.
In media comments following the fatal car accident in Donegal some commentators went so far as to suggest a curfew for young drivers to cut down on injuries and accidents.
It seems that that might infringe upon civil liberties but in the light of the recent tragic loss of life the topic was raised again.
New requirements may include a beefed up theory test and a mandatory requirement of hours of training with an approved driving instructor at a cost of up to €700.
Paul Tracey
27/07/2010
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Time limits for sexual abuse cases extended by Vatican.
It may not be civil law and it may be a late development but it is a welcomed development to see that under canon law the time period otherwise known as the statute of limitation has been extended.
The period for such investigations has been extended to 20 years from the victim’s 20th birthday.
It surely prompts the question as to why the period has not been extended in civil law in Ireland.
It will be interesting to see if any meaningful debate on the topic takes place
Paul Tracey
Latest Case Law relating to Child Abuse from the UK
As a member of ACAL a specialist personal injury group for solicitors acting in the area of child abuse we regularily get updates on developments in the area of UK case law. Some of these cases can be of assistance in dealing with similar Irish cases. A series of these decisions are set out for the information of the readers.
Merthyr Tydfil v C [2010] EWHC 62 (QB)
In the case of Merthyr Tydfil v C [2010] EWHC 62 (QB) the Claimant had two children who were sexually abused by a neighbours child. She initially reported the abuse to the NSPCC who passed on the complaint to the local authority. They duly advised her to keep her children inside, but the abuse occurred again. The Claimant suffered psychiatric damage as a result. The Defendants counsel argued that because of the decision in JD v East Berkshire, the local authority could not owe the parent a duty. Justice Hickinbotham rejected that argument. He said that there were cases where it was held that a duty could be owed to parents, such as A v Essex County Council [2003] EWCA Civ 1848 and W v Essex County Council [2001] 2 AC 592. It was also argued by the Defendants counsel that there was no duty of care. Again the judge rejected that argument.
Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256
The Claimant was abused as a boy by an assistant priest, Father Clonan, serving at a church in Coventry. He had suffered brain damage at birth, and was recognised as educationally subnormal. It was alleged that in 1974, a Father McTernan, Fathers Clonans immediate superior was informed by the parents of another boy, M, that M had been abused by Father Clonan, but he had taken no action. It was uncertain when the abuse of the Claimant began, but it was pleaded as occurring over a period of many months in about 1976. Before Mr Justice Jack ([2009] EWHC 780 (QB)) it was held that although the Claimants story of abuse was substantially as he alleged, the Defendant was not vicariously liable for the abuse by Father Clonan. Moreover although the Defendant had been negligent in not acting on the report of Father Clonans abuse in 1974, the Defendant owed no duty to the Claimant.
The Court of Appeal took a different view. They said that the law on this issue had been authoritatively laid down by the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215. The correct test laid down by Lord Steyn was whether the abusers torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. Father Clonans sexual abuse of the Claimant was so closely connected with his employment as a priest at the church that it would be fair and just to hold the Defendant vicariously liable.
In relation to breach of duty, Father McTernan was plainly under a duty to keep a careful eye on Father Clonan, and if he had, he would have seen enough to know that action had to be taken. Lord Neuberger in the Court of Appeal said that he found it hard to see why it should not be fair, just and reasonable to impose such a duty on Father McTernan, for which the Defendant would be vicariously liable.
Webster v Ridgeway School [2010] EWHC 318 (QB)
In this case two boys agreed to have a fight at a school. The fight ended up in one boy being seriously injured, and he brought a claim against the school. Evidence was adduced to show that the school had failed in a number of respects to do all that a school should in relation to discipline. In particular the school had not built a perimeter fence to prevent people from outside the school entering the school grounds. However in a lengthy judgement, Mr Justice Nicol dismissed the claim. Whilst he found that the School did owe the Claimant a duty of care to take reasonable care to keep him reasonably safe while he was on the schools premises, there was no breach of that duty. In relation to the multiple allegations of negligence, the Claimant could not establish the necessary causal link between the things that the school did not do and the injuries that the Claimant received. Moreover those injuries were not a foreseeable consequence of some of the alleged omissions.
MAGA (by his litigation friend) v the Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2009] EWHC 780 (QB).
The issue of disability came up in the case of MAGA (by his litigation friend) v the Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2009] EWHC 780 (QB). The Claimant was aged 45 at trial and he alleged that he had been abused by a Catholic priest in the 1970s. It was alleged that he had been under a disability throughout the material time of some 30 years. Mr Justice Jack considered the caselaw on this subject including the following cases:-
- Kirby v Leather [1965] 2 QB 367
- White v Fell 12th November 1987 Unreported
- Masterman-Lister v Brutton [2003] 1 WLR 1511
- Lindsay v Wood [2006] EWHC 2895
The oral evidence of the Claimant in the present case did suggest lack of capacity, together with the evidence from his psychiatrist, although the Defendants psychiatrist suggested otherwise. Therefore the Claimant had been under a disability for the material period. The Defendant appealed on this issue and the matter came before the Court of Appeal in [2010] EWCA Civ 256. Neuberger LJ said that the judge had concluded that he needed to consider only one question, namely whether the Claimant was able to conduct the instant proceedings, in the sense of being able to deal rationally with the problems which would arise in their course. Lord Neuberger said that there was some doubt in his mind as to whether this was the correct formulation. However the Claimants counsel had said that the correct test was the Claimants ability to conduct the litigation and the Defendants counsel had said that there was no difference between the capacity to conduct proceedings and the capacity to commence proceedings. Lord Neuberger said that he would deal with the test in the same way as the trial judge, and he was far from convinced that this was the wrong approach. Lord Neuberger considered the evidence. This had caused the judge some difficulty and he accepted that the case was borderline. In the event, the judge had preferred the evidence of the Claimants psychiatrist and had held that the Claimant did not have capacity to conduct the proceedings. The issue was not one of discretion nor of primary fact, but only judgment. An appellate court should not interfere. Therefore the appeal on this issue would be dismissed.
Paul Tracey Solicitor is a member of ACALNewsletter July 2010
The Association of Child Abuse Lawyers (ACAL) provides practical support for survivors and professionals working in the field of abuse. Formed 13 years ago, ACAL maintains a telephone help line and web site presence to sign-post survivors of abuse to lawyers who have the expertise and experience to assist them in obtaining the redress to which they are entitled. ACAL also campaigns in this area, and provides training, a mentoring service for members, access to databases and an information exchange to members to assist them in their work. ACALs membership is made up of solicitors, barristers, psychiatrists and social work experts who are all specialists in this field.
Latest Case Law
from the Association of Child Abuse Lawyers
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Merthyr Tydfil v C [2010] EWHC 62 (QB)
In the case of Merthyr Tydfil v C [2010] EWHC 62 (QB) the Claimant had two children who were sexually abused by a neighbours child. She initially reported the abuse to the NSPCC who passed on the complaint to the local authority. They duly advised her to keep her children inside, but the abuse occurred again. The Claimant suffered psychiatric damage as a result. The Defendants counsel argued that because of the decision in JD v East Berkshire, the local authority could not owe the parent a duty. Justice Hickinbotham rejected that argument. He said that there were cases where it was held that a duty could be owed to parents, such as A v Essex County Council [2003] EWCA Civ 1848 and W v Essex County Council [2001] 2 AC 592. It was also argued by the Defendants counsel that there was no duty of care. Again the judge rejected that argument.
Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256
The Claimant was abused as a boy by an assistant priest, Father Clonan, serving at a church in Coventry. He had suffered brain damage at birth, and was recognised as educationally subnormal. It was alleged that in 1974, a Father McTernan, Fathers Clonans immediate superior was informed by the parents of another boy, M, that M had been abused by Father Clonan, but he had taken no action. It was uncertain when the abuse of the Claimant began, but it was pleaded as occurring over a period of many months in about 1976. Before Mr Justice Jack ([2009] EWHC 780 (QB)) it was held that although the Claimants story of abuse was substantially as he alleged, the Defendant was not vicariously liable for the abuse by Father Clonan. Moreover although the Defendant had been negligent in not acting on the report of Father Clonans abuse in 1974, the Defendant owed no duty to the Claimant.
The Court of Appeal took a different view. They said that the law on this issue had been authoritatively laid down by the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215. The correct test laid down by Lord Steyn was whether the abusers torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. Father Clonans sexual abuse of the Claimant was so closely connected with his employment as a priest at the church that it would be fair and just to hold the Defendant vicariously liable.
In relation to breach of duty, Father McTernan was plainly under a duty to keep a careful eye on Father Clonan, and if he had, he would have seen enough to know that action had to be taken. Lord Neuberger in the Court of Appeal said that he found it hard to see why it should not be fair, just and reasonable to impose such a duty on Father McTernan, for which the Defendant would be vicariously liable.
Webster v Ridgeway School [2010] EWHC 318 (QB)
In this case two boys agreed to have a fight at a school. The fight ended up in one boy being
seriously injured, and he brought a claim against the school. Evidence was adduced to show that the school had failed in a number of respects to do all that a school should in relation to discipline. In particular the school had not built a perimeter fence to prevent people from outside the school entering the school grounds. However in a lengthy judgement, Mr Justice Nicol dismissed the claim. Whilst he found that the School did owe the Claimant a duty of care to take reasonable care to keep him reasonably safe while he was on the schools premises, there was no breach of that duty. In relation to the multiple allegations of negligence, the Claimant could not establish the necessary causal link between the things that the school did not do and the injuries that the Claimant received. Moreover those injuries were not a foreseeable consequence of some of the alleged omissions.
MAGA (by his litigation friend) v the Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2009] EWHC 780 (QB).
The issue of disability came up in the case of MAGA (by his litigation friend) v the Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2009] EWHC 780 (QB). The Claimant was aged 45 at trial and he alleged that he had been abused by a Catholic priest in the 1970s. It was alleged that he had been under a disability throughout the material time of some 30 years. Mr Justice Jack considered the caselaw on this subject including the following cases:-
- Kirby v Leather [1965] 2 QB 367
- White v Fell 12th November 1987 Unreported
- Masterman-Lister v Brutton [2003] 1 WLR 1511
- Lindsay v Wood [2006] EWHC 2895
The oral evidence of the Claimant in the present case did suggest lack of capacity, together with the evidence from his psychiatrist, although the Defendants psychiatrist suggested otherwise. Therefore the Claimant had been under a disability for the material period. The Defendant appealed on this issue and the matter came before the Court of Appeal in [2010] EWCA Civ 256. Neuberger LJ said that the judge had concluded that he needed to consider only one question, namely whether the Claimant was able to conduct the instant proceedings, in the sense of being able to deal rationally with the problems which would arise in their course. Lord Neuberger said that there was some doubt in his mind as to whether this was the correct formulation. However the Claimants counsel had said that the correct test was the Claimants ability to conduct the litigation and the Defendants counsel had said that there was no difference between the capacity to conduct proceedings and the capacity to commence proceedings. Lord Neuberger said that he would deal with the test in the same way as the trial judge, and he was far from convinced that this was the wrong approach. Lord Neuberger considered the evidence. This had caused the judge some difficulty and he accepted that the case was borderline. In the event, the judge had preferred the evidence of the Claimants psychiatrist and had held that the Claimant did not have capacity to conduct the proceedings. The issue was not one of discretion nor of primary fact, but only judgment. An appellate court should not interfere. Therefore the appeal on this issue would be dismissed.
pwt@traceysolicitors.ie
Who wants to be a millionaire? Disney does!
A major legal battle between the British creators of the hit TV show
‘Who wants to be a millionaire?’ and Disney’s ABC TV network has
ended in a payout of over $250million to the show’s creator Paul Smith & his colleagues.
The argument related to royalties claimed as due by Disney to the shows creators.
Barring an appeal the payout will mean a nice ‘pay day’ for the original investors in the show.
It is interesting to note that the UK comedian Jasper Carrott has a stake in the company.
So happy days for everyone expect Disney!
Maybe they should have phoned a friend!!
90 Days in Jail for Lindsay Lohan – Blame it on the Scram?
Failing to attend alcohol education classes landed actress Lindsay Lohan in jail for 90days.
The actress had apparently missed 7 or her scheduled classes as instructed by the Court in an earlier hearing.
Her film appearances include Freaky Friday, Mean Girls and The Parent Trap set her up as a promising star until drug & alcohol abuse landed her in hot water.
An unusual aspect of an earlier court ruling was the requirement for the actress to wear an ankle alcohol monitor, which apparently issued an alert after she attended an MTV movie award event.
Once such devise is know as the SCRAM (Secure Continuous Remote Alcohol Monitor) ankle bracelet.
This device is similar to the ankle bracelet law enforcement currently uses to monitor sex offenders and other persons that are under “house-arrest”.
Except that it does not keep people at home: it is worn 24 hours a day and can be monitored via the Internet at a 900MHz radio frequency, and allows the convicted person to move about normally in their daily lives.
The big difference is that it constantly monitors their blood alcohol level and can be set up to take as many as 48 tests per day without the wearer’s knowledge!
The SCRAM transdermal ankle bracelet is attached to the offender’s ankle and is not removed until their sentence has been completed. It is tamper-resistant and sends reports around the clock to the probation officer and the SCRAM headquarters with a bar chart result.
There is a modem that is placed in the offender’s home and when the wearer is within range of the modem, all reports are relayed immediately to the monitor.
This bracelet helps authorities determine the alcohol use of offenders and is rapidly becoming commonplace in drunk driving conviction sentences. It measures the molecules of ethanol coming off the body; 5% of everything you drink comes off the body in the form of perspiration.
The tool is an important part of the defense arsenal against alcohol abusers. Some people may argue that this is a case of “big brother” invasion on personal privacy, but you must consider the fact that they would not be “invaded” if they had used alcohol responsibly or avoided it altogether.
The manufacturers say that ‘It’s better to stop drunks between the bar and the car’, also known as “intervention at the point of consumption” than to deal with the drunk driver after the fact.
It would be interesting to see the reaction to their introduction in Ireland!
Comments please
Paul Tracey Blog
08/07/2010
Fake Sex Internet Advertisements end up in Court.
An unusual case came before the courts in Dublin this week.
The accused a lady in her mid thirties is accused of posting advertisements that offered sex on a classified website on behalf of two unwitting people.
In an interesting closing address her barrister suggested that the DPP Director of public prosecutions should ‘back off’ and likened the actions of his client to those of graffiti on a toilet wall!
The jury will decide whether they agree with his plea or not.
On thing is certain pranks on the internet can have serious consequences for those posting messages or advertisements!
Paul Tracey 08/07/2010
Pick up a penguin takes on a new meaning!
The recent removal of a penguin from Dublin Zoo is little more than a copy
of many similar pranks to have been sprung on zoos around the world.
If anything it was more of a ‘copycat prank’ than a ‘bird brained idea’!
A similar incident occurred in 2005 when an 18-inch baby penguin was stolen from the Amazon World zoo in southern England.
Earlier this year in Japan a security guard at the Nagasaki Bio Park noticed Akira Honda, ushering a Humboldt Penguin into his suitcase.
According to the zoo, that penguin was worth about £2,960.
Mr. Honda told police that he had run up debts which he intended to pay off by selling the creature.
Whatever the motivation for the Dublin incident the penguin has since been safely returned home apparently unharmed.
It was taken into custody by Store Street Gardai, who must have had a hard job putting handcuffs on a pair of wings!
It will be interesting to see what legislation will be brought to prosecute the culprits if they are apprehended.
They could face convictions for theft, cruelty to animals or possible prosecution under the wildlife legislation.
We await developments with interest.
Cyclist Banned from the Streets of US town!
A town in the US has banned cyclists from its streets, with fines for cyclists of up to €68. The town called Black Hawk in Colorado, (yes believe it or not) which has a population of just above 100, is thought to be the first town in the US to make cycling illegal.
The new law has been introduced for “health and safety” reasons, said administrators of the former gold mining town, which in the 1990s decided to develop gambling to prevent the place vanishing altogether.
Apparently the decision is to prevent collisions between cars and bicycles on 19th-century streets that were designed for horses and carriages.
The town started enforcing the ban on 5 June 2010, five months after it passed the law requiring cyclists to dismount and wheel their bikes through the town.
Whilst the rule may seem little more than a version of our pedestrian street here in Dublin a number of American cycling groups are up in arms.
Is this a case of ‘Blackhawk Down on cyclists!!? ?’
Sorry couldn’t resist that!
A copy of the notification is attached.
BICYCLES PROHIBITED
City of Black Hawk Ordinances 2009-20 and 2010-3 states bicycles are prohibited within the City on certain streets. Signs are posted on Gregory Street, Main Street, Richman Street, Mill Street, Miner’s Mesa Road, Bobtail Street, and Selak Street prohibiting bicycles.
City Police Officers will ticket anyone caught riding on these streets.
Cyclist Banned from driving for ‘breaking a red light’!
A cyclist who broke a red light and seriously injured himself when colliding with a car a car has been banned from driving a car for a year.
This unusual case highlights the obligations of cyclist as road users.
The case which was heard in a Dublin District Court has surprised many commentators as convictions of this nature & bans are somewhat rare.
The law allows convictions to be endorsed on licenses & and driving bans imposed.
If an ‘offender’ does not have a current driving license the conviction may be endorsed on a subsequent license if one is applied for.
So it is cause for reflection for any cyclist ‘runs a light’ or ignores any other rule of the road as they could face a driving ban!
Cycle safely
Paul Tracey
Solicitor & Cyclist!
