Farm Accidents statistics show increase in fatal accidents.
A farmer recently died in tragic circumstances when he fell into a slurry tank.
The accident, involving a 66 year old man near Mullingar.
Efforts to resuscitate the man were, unsuccessful. The Heath & Safety Authority and the Gardai have both investigated this accident.
Unfortunately, farm accidents have been on the increase in recent years and this tragedy emphasises the need for renewed attention to safety in the workplace, in particular, on the farm.
House Purchaser wins case against obligation to complete purchase of property.
In an interesting case in the North of Ireland heard in the High Court before His Honour, Mr. Justice Denny, a building company was refused their application to force a purchaser to complete a contract to buy an apartment in what is known as the Titanic Quarter of Belfast.
In effect, the argument by the Defendant, a Mr. Neil Rowe, was that he had no funds to complete this transaction. A significant number of cases have apparently appeared before the Court, where developers have tried to enforce their contracts.
This case was seen as something of a test case as to whether impecuniosity constituted a Defence to a claim for an Order for specific performance.
In his Judgement, the Judge indicated that he would set aside that the impossibility of performance is a ground in law for refusing the remedy of specific performance.
He, accordingly, refused the performance sought by the Vendor.
It will be interesting to see whether this case will be followed by cases appearing in Courts “South of the Border”!
Paul Tracey Solicitors 01/09/2010
Further Restrictions on Young Drivers to come into effect !
Speaking in the wake of the fatal car accidents in Kerry, Chief Executive of the Road Safety Authority, Mr. Noel Brett commented that a number of issues were shortly to be addressed in what is called the “Graduated Licence Scheme” which is shortly to be introduced.
The measures include the reduction of the alcohol limit for drivers, to 20mg per 100milli litres of blood from 80mg/100milli litres.
He said that this had already been passed by the Oireachtas.
In addition, he said that a new Learner Permit Process would be introduced in place of the Provisional Licence Scheme.
Under the new Scheme, it will not be possible to sit a diver’s test without having a learner permit for 26 weeks.
In addition, Learner Drivers must be accompanied by someone with a full Driver’s Licence for a period of two years.
The Graduated Licence Scheme may also require Learner Drivers to get a certain number of hours and to keep a log book in relation to their driving.
Despite earlier concerns, the new Law does not include curfews.
In light of the fatal accidents and indeed, the increase in the number of serious personal injuries sustained by young people in cars, it is hopeful that these proposals will assist in minimising both the deaths and personal injuries.
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
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
To subscribe to this free newsletter please click here info@childabuselawyers.com
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
