Hip failures affect over 3,000 patients in Ireland
It has emerged that nearly 3,500 Irish people have received a replacement hip system which is at the centre of a worldwide recall.
There are two devices at the centre of the recall, these are known as, the ASR XL Acetabular System and the DePuy ASR Hip Resurfacing System.
It has been reported that most hip replacements involving the ASR system have been successful.
DePuy which are owned by healthcare company Johnson and Johnson have stated that according to the data in the UK, patients with the implants required revision surgery or corrective procedures within five years in about 12 per cent of the cases.
The company have said that this was higher than expected resulting in the recall.
It has been reported that problems arising with the ASR device include loosening parts, infections, fractures, dislocation, metal sensitivity and pain.
What would be of concern for the public is that apparantly complaints had been made 2 years ago to the Department of Food and Drug Administration in the US concerning two types of faulty hip implants, questions may now be raised as to why it has taken so long for the recall to be implemented.
DePuy, have stated that they will pay for the cost of doctor visits, tests and procedures associated with the recall.
Whilst it is early days yet it appears that databases are currently being checked in Ireland for patients who received this type of implant. Early reports suggest a review with hospital & consultants may follow to decide the best way forward.
The news is clearly a worry for people who may have to undergo further surgery , recovery and loss of earnings during their recouperation.
From a legal perspective it is clear that the manufacturers have admitted the fault and in such circumstances victims of this ‘systems failure’ should not be out of pocket for any expenses they incur.
Where additional surgery has to be undertaked along with the anticipated pain during the recovery process it is clear that these patients may be entitled to compensation.
Paul Tracey
Paul W Tracey Solicitors
30 August 2010
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
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!
Lawyers take to the Stage!
It’s always interesting to see what’s going on in the world of lawyers
In Heuston Texas lawyers have taken to the stage with their own musical!
The show called Night Court ran in June 2010
Described as an original all-lawyer musical comedy benefiting charity.
Night Court is written by lawyers, performed by lawyers, with an orchestra and crew full of lawyers.
The show run is June 9-12 at the Wortham Center.
Proceeds benefit local charities, including the charitable works of the Houston Bar Foundation.
Anyone who got to see the show should let us know the verdict!!
Paul W Tracey Solicitors
www.traceysolicitors.ie
Bloomsday Cyclists hit the street of Dublin.
As part of Bikeweek 2010 this Friday the 18th of June, the Irish Youth Foundation, in association with Cyclone Couriers, will be hosting the annual charity Bloomsday Messenger Bike Rally and Lunch, which celebrates James Joyce’s Ulysses and Dublin.
On Friday, over 70 messenger bikers will gather at the Wolfe Tone statue on St Stephen’s Green before making their way to the Mansion House, where they will be joined in a rousing rendition of Molly Malone by the Lord Mayor of Dublin.
The cyclists, who will be dressed in their finest Edwardian attire, will then embark on a journey through the streets of Dublin, making three pit-stops along the way for well-deserved refreshments.
Over 200 colourful guests are then expected to welcome the rally at the historic Shelbourne Hotel, where a fun-filled lunch and a charity auction will follow.
Senator David Norris will round off the celebrations by reading an extract from James Joyce’s Ulysses.
Proceeds of the charity event go to the IYF.
The Bloomsday Messenger Bike Rally and Lunch has, over the past 17 years, raised more than €600,000 for community and voluntary groups throughout the country, who work to create positive differences in the lives of children and young people facing adversity.
When: Friday, 18th June 2010
Time: 9:00am
Location: Wolfe Tone Statue, St Stephen’s Green
We recommend you keep an eve out for cyclists around the city and cheer them on
www.Bikelaw.ie
€76k awarded to bus driver after suspension failure causes serious injury
A DUBLIN Bus driver injured when the pneumatic suspension on his vehicle failed as he drove over a speed ramp has been awarded nearly €76,000 in High Court damages.
The driver was represented by Dublin personal injury law firm Paul W Tracey Solicitors
The firm had sued the employer and a local authority on behalf of the injured driver (Dublin Bus & South Dublin Co Co) over the incident on the Tallaght to Bohernabreena Road on September 27, 2005, when the driver suffered injuries to his neck and lower back.
The driver had driven the 201 bus over three ramps on the road when, as he went over a fourth ramp, the suspension malfunctioned and caused a loss of “cushion effect” to the bus.
Mr. Justice Éamon de Valera sitting in the High Court awarded €75,911 damages against Dublin Bus. The judge said that the driver was entitled to succeed in his claim against the bus company but not against the council which had, he said, built the ramps in accordance with best practice.
The judgment went on to say that Dublin Bus had a statutory duty to ensure necessary measures are taken so that the equipment used is suitable, or properly adapted, for its purpose so that it can be used by employees without risk to their safety and health.
Where there is a risk or rupture or disintegration of equipment likely to pose a danger to health and safety, then appropriate protection measures shall be taken, the judge added.
Paul W Tracey Solicitors June 2010
Bikeweek Hits the Streets from the 13th of June
Bike Week 2010 is a cross-community effort to highlight cycling as a fun, cost effective and healthy way to travel.
Promoters include cyclist.ie (Ireland’s National Cyclist Lobby Group), the Dublin Cycling Campaign, representatives from the various strands of the cycle industry, An Taisce, local authorities, the health sector, Cycling Ireland, private individuals, the Office of Public Works, the National Transport Authority, the Road Safety Authority, the Department For Regional Development Northern Ireland and the Department of Transport.
A number of the events during Bike Week 2010 are being kindly supported by a wide range of sponsors including the Embassy of Denmark, An Post and All4one Bikes4work.
Checkout more at www.bikeweek.ie
