Posted: March 9th, 2019
€150,000 in violent attack compensation has been awarded to a mother of two at the High Court after she was assaulted by her former partner and the father of her two children.
Mr Jonathan McSherry (36), who used to live at Cedarbrook Walk, Cherry Orchard, Dublin, was given a three and a half year sentence for the violent assault on Jessica Bowes. He was released early after 22 months. Mr McSherry told the High Court that he smashed almost every bone in Ms Bowes face and kicked her many times during the attack that took place on December 2015.
Mr McSherry, who was previously employed by a former soldier, said sorry to Ms Bowes and her civil action was now being heard by the High Court for a final assessment of personal injury compensation. Mr McSherry attacked Ms Bowes when she arrived home at her Clondalkin house in a taxi following a Christmas night out on December 20, 2015, to find Mr McSherry waiting there for her. Video footage of the attack showed McSherry pulling Ms Bowes from the taxi, punching, kicking and dragging her. She was knocked unconscious twice during the attack which lasted over 90 seconds before she was able to escape into a closeby house.
After the award was announced by the Judge, Ms Bowes made a statement saying she hopes the ruling and compensation award will result in victims of domestic violence choosing to initiate legal cases.
She remarked: “I hope this will act as a deterrent, that people will realise there are possible large financial consequences as well as the threat of prison for this sort of violence. I’ve already had people write to me about it. One woman sent me a letter and a holy medal on Tuesday thanking me for my courage and asking me to pray for her so that she could find courage to tell the truth too. “She went to the bother of writing the letter, getting a stamp and posting it”.
“I was very upset for her and I will pray for her. She signed the letter ‘an old lady’, and it shows this can happen to anyone from any background. I just hope now that with International Women’s Day coming tomorrow, women everywhere will find the courage to speak out” Ms Bowes commented.
Ms Bowes finished up saying: “I hope women young and old will that find strength. It’s important for women to realise help is there for them – from places like Women’s Aid – [and] that legal advice and professional help is available.”
Ms Justice Bronagh O’Hanlon advised the High Court said that she is of the opinion that Ms Bowes’ account was was really took place. She added that this was a very serious case that resulted in the woman suffering difficulties which were ongoing and permanent.
The judge said, even though Mr McSherry’s admissions and apology for the violent assault were made that did not come immediately. The Judge awarded €150,000 appropriate given the circumstances to Ms Bowes.
Posted: February 23rd, 2019
A school injury compensation award of €55,000 for a nine-year-old girl has been approved after the court was informed how she caught her finger in a school door and will no longer be able to grow her nail long.
Solicitor Fiona Crawford, appearing on behalf of the child, advised the court that the girl had been closing the door of a classroom when it had shut back on to her finger. She was rushed to Letterkenny University Hospital for treatment before being taken on to Galway Hospital where a surgical procedure was carried out on her finger by surgeon Michael O’Sullivan.
Ms Crawford advised presiding Judge John Aylmer that, as a direct result of the school door accident injury, the child was quite sensitive to colder temperatures and did no like anyone coming into contact with the affected finger as she had become very self conscious about the pain it could inflict on her. The top of her finger was lost in the accident as it could be be reattached during treatment, Letterkenny Circuit Court was informed.
Ms Crawford told the presiding Judge that the girl in question continued to suffer from a serious amount of discomfort and said she would not be allowed to have her nails grow long due to the injury. Also, she has a visible scar on the top of her finger and her handwriting had also been impacted due to the accident.
At first the young girl was offered a personal injury compensation amount of €35,000 in relation to the accident that happened in April 2017. Ms Crawford said this was considered much too low give the life long injuries that the child will suffer from. Judge Aylmer agreed with this and directed that an improved personal injury compensation amount should be offered to the child.
Both sets of legal representation returned later in the day and the Judge was advised that a higher school injury compensation settlement offer of €55,000 has been agreed upon by all parties. The Judge gave his approval for the improved personal injury compensation offer.
Posted: January 9th, 2019
€1.3million personal injury compensation has been awarded to the family of murdered Garda Adrian Donohoe, who was killed while on he was on duty
The widow of deceased Garda Adrian Donohoe, Garda Caroline Deloughrey, took the legal action against the Minister for Public Expenditure and Reform in relation to the manner of the death of her husband, who was shot dead five years ago while on armed escort duty. Due to the suffering and trauma that she has experienced, Ms Deloughrey has since retired from the force on health grounds.
The case was before presiding Judge Justice Michael Twomey, who was asked to give his approval to the negotiated settlement due to involvement in the legal actions of Garda Donohoe’s son and daughter who are aged 11- and 12-years-old respectively.
Ms Deloughrey, who is originally from Clare, told the Court that she met her husband when they both attended Garda Training College in Templemore, Co Tipperary. The married couple had been deployed to the Garda National Immigration Bureau in Dundalk Garda Station. Garda Donohoe had been working on armed escort duty with a colleague at Lordship Credit Union, Bellurgan, Co Louth, on January 25, 2013 when he was shot dead.
Eoghan Fitzsimons SC and barrister Eamonn M J Coffey BL, legal representatives for Ms Deloughrey and her children, appearing with the family solicitors James McGuill and Company. Judge Twomey was told that a Garda death compensation settlement of €970,000 had been agreed by the legal teams of both parties for Ms Deloughrey with the rest of the personal injury compensation award being split almost equally between her two children but slightly in favour of the younger child.
Judge Twomey was advised that the Minister had approved the formula of division of the total Garda death compensation award the State was agreeable to it. The children’s portion of the award will be placed in court funds until they are 18 years old and Ms Deloughrey will receive her €970,000 compensation award immediately.
Posted: December 6th, 2018
A bar manager from Limerick, Colin McNamara, has been awarded in excess of €80,000 personal injury compensation at the High Court in relation to a claim he submitted for an accident that occurred at Copper Face Jacks Nightclub.
Mr McNamara broke his ankle in a wet floor slip at the Dublin venue resulting in a double fracture to the joint on October 9, 2015. He was in the Dublin nightclub as part of a visit to the capital for a Republic of Ireland soccer match at the Aviva Stadium in 2015.
Now 36 years old, Mr McNamara, with an address at Sycamore Avenue, Rathbane, Co Limerick had taken the disco accident compensation action against Breanagh Catering Ltd and the proprietors of Copper Face Jacks at Harcourt Street, Dublin, in relation to the injuries he suffered in the accident. Mr McNamara told the Court that he slipped on a floor which was wet and represented a slipping hazard to patrons. He said: “the wet floor caused me to slip and fall. I turned to walk but I ended up on the floor.”
He alleged that there were no attempts to implement any proper steps to clean and dry the floor surface before the accident took place. Along with this he told the court that the floor had been left in a wet and slippy condition which was a serious danger to patrons.
The defendants in the nightclub injury compensation action denied these claims. Mr Justice Hanna advised the High Court that he had been provided with an order of the court giving judgment against the defendant. As a result of this issues of liability were not before the court. As attempts to resolve the case were unsuccessful the defendant opted not intervene in court to fight the medical evidence, as was their right, but instead chose to use a legal cost accountant to settle the case.
Mr McNamara told the High Court Judge that security employees came and picked him up from the ground and brought him out to a back alley where another employee looked at his leg and ankle before telling him that it was not broken. The security staff told him that they were not in a position to call for an ambulance. Mr McNamara told the Court that he “hobbled away” and returned to his hotel by taxi. As he was still suffering from a major amount of pain upon his return to Limerick, Mr McNamara went to hospital where he was advised that he had fractured his ankle in two different places. Following surgery and had to use crutches for a period of time also.
At the High Court Mr Justice Michael Hanna said that Mr McNamara has suffered a serious and significant injury when also considering the fact that works as a bar manager and would need to be on his feet most of the time. He added that Mr McNamara was unable to work for five months due to the surgery. He, Justice Hanna, said that the correct figure of personal injury compensation was €80,000 and another €7,116 ‘special damages’ to pay for medical and other expenses.
Posted: November 1st, 2018
A factory employee who fell to the ground and sustained a severe ankle injury when he tried to move a trapped bin has been awarded €224,000 factory injury compensation at the High Court.
Tomasz Zdejszy was working at a waste collection business when he sustained permanent damage to his ankle. He dropped nine feet to the ground on April 2012 at the business park in Blanchardstown, Dublin 15 when the accident occurred.
While passing judgement Justice Michael Hanna said that the 37-year-old man had mounted a waste paper container to try and release a bin by kicking it. The Judge said that Mr Zdejszy had started to climb down from the position due to becoming wary of the height. At this point a colleague passed him a metal bar to help with dislodging the bin.
In his factory injury compensation action against his employer Stewart Foil Ltd, Tomasz alleged that there had been a failure to ensure the safe and proper removal of an obstacle to waste collection without the need for Mr Zdejszy to work at a dangerous height.
In his compensation action taken against Panda Waste Services, he alleged that he was required to remove or move a rubbish bin on a waste container while operating at a height. He also claimed that he was provided an inappropriate implement, a metal bar, to do this.
Justice Hanna found there was twenty per cent contributory negligence on the part of Mr Zdejszy as he did not use sufficient care in relation to his own safety. He ruled that Stewart Foil Ltd were 66% to blame and Panda Waste Services 33% in relation to the accident.
Judge Hanna informed the High Court that Mr Zdejszy had sustained a typical injury for this type of fall, with a severe break of the right side of his foot, reaching into his ankle joint. This fracture led to him developing arthritis on the joint, which needed surgical fusion. Mr Zdejszy experienced permanent loss of movement in his ankle, a loss of heel height of around one an inch on the injured side and has been left suffering ongoing pain.
Posted: September 10th, 2018
A news article in The Irish Examiner newspaper has revealed that there is a lengthening backlog in the Criminal Injuries Compensation Tribunal, leaving victims of serious violent assaults waiting years to receive compensation.
Since 2012 only 597 payments were have been issued in relation to the 1,357 claims have been initiated. In 2017 only 31 compensation payments were processed to the 181 new applications. In 2018 only 10 victims were issued to the compensation by the end of May 2018 when 73 new cases were recorded during that time period.
The details were present in a reply to a parliamentary question submitted by Fianna Fáil TD John Curran has now asked for an immediate audit of the scheme to discover what is leading to the delays.
Commenting on this Mr Curran TD said: “Despite the fact that the number of cases which settle in a pay-out is declining year on year, there are lengthy delays in the Criminal Injuries Compensation Tribunal assisting victims of crime in Ireland. As it stands, should this year’s applications be managed in the very same poor manner it’s likely that just 24 cases will be settled in 2018.
He went on to say: “Victims should expect that they will receive their compensation in a prompt manner and in accordance with constitutional justice. In correspondence I received, the Tribunal itself cited its limited resources and “economic constraints” as contributing factors in the slow process of claims and victims obtaining their due compensation. The Tribunal receives roughly €4 million in budget each year, but it is uncertain how this budget is set considering the number of, and types of cases varies year on year. A thorough review of the Criminal Injuries Compensation Tribunal must be carried out before next year’s figure of unsettled claims rises even more. This review could not come quick enough for very many victims of crime or their families.”
You can read the full text of his statement by clicking here.
Posted: August 2nd, 2018
€55,000 medical mistreatment compensation has been awarded to the family of an 82-year old man who died at Mayo General Hospital a few days after being rushed to A&E following a road accident.
The man in question, Darby King, who was on anti-coagulation medicine, was only prescribed blood clotting medication ten hours after he was taken to A&E it was alleged.
The accident, which occurred on April 24 2014, left Mr King with minor injuries. However, his condition worsened over the next few days and he died in hospital three days later. A verdict of medical misadventure was returned in a inquest hearing in 2015.
The inquest was advised that there had been “unacceptable delay” in administering blood-clotting medication greatly diminished his chances of survival.
In the High Court, Mr Justice Robert Eagar approved a settlement of €55,000 in the case.
Outside court, Mr King’s daughter, Caroline Murnane, on behalf of the King family said they were very happy to finally have closure on this case.
They said: “There are no words to describe what the past four years has done to us. “We were traumatised by Dad’s death and we have spent the last four years trying to get justice for him and to give him a a voice. We have been tormented every day by the events that unfolded the day Dad was admitted to the hospital. However, the verdict received from Dad’s inquest together with the court ruling will now allow us to move forward.”
Ms Murnane, of Clogher, Claremorris, Co Mayo, and her brother John King, of Drummin, Castlebar, had sued the HSE over the death of their father. It the compensation case they claimed that, as a result of the accident, Mr King suffered cuts to the face, nose and head and was confused.
Addtionally it was claimed that:
- The advice was that the prognosis was inadequate and by the early hours of April 25, Mr King was considered for palliative care.
- There was an alleged failure to diagnose a traumatic head injury and to prescribe blood clotting medication in a timely fashion.
- There was an alleged failure to adhere to the advice of Beaumont Hospital to administer the blood clotting medication as quickly as possible.
The claims were denied by the defendents.
Posted: July 20th, 2018
The High Court has approved a finding that a hotel worker who got into an altercation with his managing director in relation to the removal of rubbish was unfairly dismissed. Along with this a compensation figure of €32,178 along has been awarded by the Employment Appeals Tribunal.
Mr Justice Bernard Barton ruled the investigative/disciplinary meeting lead to the dismissal of Eugene Young from Castle Durrow Country House Hotel in Durrow, Co Laois, was fundamentally flawed, contrary to natural justice and the also the hotel’s own policy.
Judge Barton upheld a finding of the Circuit Court that Mr Young had been unfairly dismissed from his position. The High Court is set to rule late in relation to the award and costs. The initial finding had been appealed by Towerbrook Ltd, trading as Castle Durrow Country House Hotel, had appealed the EAT and Circuit Court decisions.
Mr Justice Barton said the case arose out of an incident on the busy June bank holiday weekend in 2013 when a considerable amount of rubbish was generated and which was deposited at the rear of the hotel, near the kitchen.
Mr Young, who had been employed as a general handyman for the previous 13 years, decided to remove rubbish for collection prior to the normal 11am time slot, so as not to disturb any guests, as it was blocking a kitchen entrance and preventing entry to the kitchen. He did so at 9.45am.
That morning the food had to be delivered by 9.45am but the kitchen entrance was blocked by the rubbish which meant he couldn’t load the food. Mr Young decided to remove the rubbish although he knew it was hotel policy not to do so until after 11am so as not to disturb guests.
The managing director heard what was taking place and remonstrated with Mr Young which led to an altercation between the two parties. The exact nature of the altercation, and the physicality that occurred was disputed by both individuals. Due to this Mr Young demanded an apology from Mr Stokes which was not forthcoming and he was told to go home and calm himself down.
When Mr Stokes did not turn up for a meeting the next day additional efforts were made by to resolve the matter. However, Mr Young went into the office of hotel financial controller, Naomi Shairp, where he tried to remove his shirt to show her the bruising on his chest from the alleged assault. This scared Ms Shairp and disciplinary proceedings were later held in relation to both incidents, alleging gross misconduct. The result of these hearing was that Mr Young was dismissed from his employment.
Mr Justice Barton said “I was left with the distinct impression that, had a little common sense and humility been brought to bear on matters, the outcome might very well have been different and this entire litigation avoided”. He ruled the disciplinary meeting leading to the dismissal was flawed as it was overseen by Mr Stokes himself into his own complaint and that of Ms Shairp.
Posted: March 21st, 2018
Mr Justice Raymond Groarke, in awarded €20,000 to a six-year-old boy whose laptop computer exploded and caught fired at his mother’s dining room table as ‘scary’.
The young boy Shane, now 10-years-old, took the personal injury compensation action against Hewlett Packard Ireland Ltd through his mother Anne Marie O’Sullivan for up to €60,000 damages for physical and psychological injuries he sustained due to the explosion that happened at their home in Castle Hill, Slane, Co Meath on October 4, 2013.
The Circuit Civil Court was advised by Ms Craddock told that Shane was using the lap top on the dining room table when it exploded, inflicting injury, mainly psychological, on him.
Mr Justice Raymond Groarke, Circuit Court President, commented: “That’s scary. You’re telling me that none of us are safe leaving out lap tops plugged in overnight”.
Ms Craddock told the court “His mother threw it out onto the patio where it continued to burn”. She added that Shane had experienced a darting pain going up his arm at the time and afterwards suffered anxiety about all electrical appliances.
Shane was taken to the clinic of Dr Seamus Kiernan at Watergate Street, Navan, four days after the incident. He was sent for an ECG which subsequently showed no major abnormalities.
Shane had been further reviewed on November 18, 2013 when it was noted he had experienced post trauma stress due to the accident. He became very anxious and insisted on all electrical plugs being switched off at night. He also worried about the safety of lights on Christmas trees.
Appearing in court with her son, Ms O’Sullivan, said in an affidavit that he had a further review in September 2015. Aside from nervousness of electrical appliances, lights and electronics and some minor post trauma stress he had gotten over from the experience and was now taking part in sports again.
The court was told by Ms Craddock that Hewlett Packard Ireland, which has a registered address at Sir John Rogerson’s Quay, Dublin, had made a €20,000 personal injury compensation settlement offer to Shane and she was recommending that the court approve this award.
Judge Groarke agreed said he felt it was a good personal injury compensation offer in the circumstances and approved it with costs associated.
Posted: December 19th, 2017
A Defence Forces whistleblower has made a protected disclosure claiming that the children of Air Corps staff died due to toxic chemical personal injury that were inflicted at at Baldonnel airfield.
Earlier this year a document was made available to the public in which a staff member of the Defence Forces said that they had proof in relation to the “the untimely deaths of at least 20 adults…of which I believe died of illness related to unprotected chemical exposure”.
Included in this was proof that the death of a girl just after birth happened due to ventricular septal defect (heart defect), a five year old boy passed away while having surgery to address a ‘malrotated intestine’ and a girl aged 15 lost her life after contracting Ewing’s sarcoma, a type of cancer – her father is also currently suffering from leukaemia.
There have been claims made about the consequences of toxic exposure on the wives of members of the defence forces. A mechanic, who used to work with the Air Corps, discovered that many of these women had suffered more than one miscarriage and in one instance, a woman had eight consecutive miscarriages. Former civil servant Christopher O’Toole was appointed as an independent third party, by the Minister for Defence in 2016, to investigate the allegations
Mr Micheál Martin TD, leader of Fianna Fáil, commented that he feels a Commission of Investigation should be established. Mr Martin said, “The situation is far from satisfactory because with his opening comments the report’s author is essentially saying he cannot fulfill the terms of reference. From the Government’s point of view they established this review, they must have known the terms of reference could not be fulfilled. It’s farcical.”
Though the Health and Safety Authority (HSA) have stated that risk assessment processes need will be reconsidered, a whistleblower has said that these measures are “too little, too late”, particularly in the case of those who have lost family members or who have developed life-changing illnesses.
There have been allegations made that these fatalities are caused by organizational failure in the Defence Forces which meant that Air Corps personnel were vulnerable to toxic chemicals. The Defence Forces are now dealing with Toxic Chemical Personal Injuries compensation litigation being taken by staff.
Posted: November 16th, 2017
€20,000 House Accident Compensation has been awarded to a mother and son whose bathroom was splattered in “an explosion of raw sewage”.
Counsel for Patricia Powell and her son Sean Barrister, Andrew Walker, advised the Circuit Civil Court yesterday that both of them had suffered serious personal injuries as a result of “the explosion”. He went on to say that there was “an (sudden) explosion of raw sewage up through the toilet” and that it went all over the floor, walls, bath and hand basin.
Judge Francis Comerford was told that the mother and son were at their house in Hayestown, Rush, Co Dublin, on August 19 2015, when maintenance work was underway on the local drainage and sewage system by the Fingal County Council nearby.
Mr Walker advised Judge Comerford that Ms Powell and her son did an initial clean up before hiring a contract cleaning company to carry out additional work that was required. Despite this a strong smell remained in Ms Powell’s home, resulting in them vacating the residence.
Now residing at Hampton Cove, Balbriggan, Co Dublin, Ms Powell and Sean sued Fingal County Council and the water utility for up to €60,000 damages for psychological distress and trauma suffered, expenses incurred and house relocation charges.
Judge Comerford awarded Ms Powell €12,000 damages and her son €8,000 damages, and their costs, stating that they were entitled to house accident compensation for nuisance as well as a degree of damages for personal injury due to the incident that they experienced.
Posted: March 14th, 2017
A woman has been awarded compensation for a back injury she sustained after the chair on which she was sitting in a restaurant collapsed beneath her.
In May 2014, a woman was dining at the China Kitchen Restaurant in Beaumont with friends when a leg became detached from the chair she was sitting on, causing it to collapse.
The woman – a thirty-four year old cleaner from Finglas – twisted to her right side to avoid falling to the floor. However, due to her sudden movement, she felt immediate pain to her lower back. The following day, she visited her GP to discuss the pain. Her doctor prescribed painkillers.
For some time after the incident, she continued to experience pain in her lower back after working or sitting for a long time. The woman sought further medical advice, and underwent a course of physiotherapy sessions. Although the sessions had some effect, she still continues to suffer intermittent pain around her lower back.
The woman sought legal counsel, and claimed compensation for a back injury due to falling from a broken chair against Xwfx Ltd – the registered owner of the China Kitchen Restaurant. She alleged that the restaurant had been negligent in ensuring that the chair was not faulty, and that the waiter that had come to her assistance after her accident had tried to repair the chair rather than replace it, thus setting her up for further injury.
Xwfx Limited failed to answer a request from the Injuries Board for the restaurant´s consent to conduct an assessment of the woman´s claim, and subsequently failed to attend a court hearing after the woman had taken her case to court. By default, the case was found in the woman´s favour. It proceeded to the Circuit Civil Court for an assessment of damages only, where it was heard by Judge Linnane.
After hearing the details of the case, how the accident had occurred, and the consequences of the injury to the woman´s quality of life, Judge Linnane awarded her €17,500 compensation for a back injury due to falling from a broken chair.
Posted: November 9th, 2015
The HSE have lost an appeal against the amount of compensation paid to a cerebral palsy sufferer, though the case may still proceed to the Supreme Court for a final resolution.
When Gill Russell, from Aghada in Co. Cork, was born on the 12th July 2006, he was diagnosed with dyskinetic cerebral palsy as a result of a “prolonged and totally chaotic” birth when he was delivered at the Erinville Hospital. Karen Russell, Gill’s mother, then proceeded to make a claim for birth injury compensation against the Health Service Executive (HSE). The HSE admitted liability for Gill’s injuries, and then an interim compensation settlement was awarded by the High Court until a dull assessment could be carried out.
In December of last year, the drawn-out claim was eventually resolved for a total of €13.5 million, meaning that this settlement was the largest ever awarded by the High Court for cerebral palsy damages. However, the HSE decided to appeal the award, and claimed that the judge presiding over the case – Mr Justice Kevin Cross – had not used an appropriate rate of interest in his calculations. The HSE stated that Judge Cross had used a lower rate of interest than that which was usual in the Irish courts when dealing with such a case.
When the case was heard at the Appeals Court earlier this month, a panel of three judges upheld the settlement made by the High Court. They said that, if a higher rate of interest were used, the result would mean the injured party would be forced to take “unjust and unacceptable” risks with their investment to ensure future security.
Ms Justice Mary Irvine, one of the three judges on the panel, said that it was not for the courts to determine how the recipient of an award was to invest it. She also commented that the Russell family and the HSE would not be in this circumstance if the government had enforced adequate legislation to allow for periodic payments.
Despite the decision of the Appeals Court, the case is unlikely to have come to a full conclusion. Some spectators warn that this award of compensation has set a precedent that could cost the State Claims Agency and insurers up to €10 billion over the next decade. The HSE has indicated its intentions to bring the case to the Supreme Court.
Posted: November 4th, 2014
The Financial Services Ombudsman has been told by an Appeal Court judge to review an increase in a mortgage interest rate which a Dublin couple is claiming to be unfair.
Kenneth and Donna Millar had originally complained to the Ombudsman that the Danske Bank had increased the interest rate on their six variable rate investment mortgages and on the mortgage on their family home to 4 percent at a time when the Central European Bank´s interest rates were at an all-time low.
The couple argued that, under the terms of their variable rate mortgage, their lender was only entitled to change the interest rate on their mortgages “in line with general market interest rates”. However, when the Millars asked the Danske Bank to review the increase in their mortgage interest rate, they were told that the rates set by the European Central Bank were irrelevant.
With their complaint to the Ombudsman, the Millars – from Portmarnock, County Dublin – included an explanation of how their variable rate mortgages were supposed to operate based on information that had been provided to them at the time the first of the mortgages was taken on with the National Irish Bank in March 2009 prior to its subsequent takeover by Danske Bank.
The literature stated that the interest rate borrowers paid on National Irish Bank variable rate mortgages change in line with any fluctuations in general interest rates. The explanation went on to say: “When interest rates go down your monthly payments do likewise. However, when interest rates rise, your monthly payments will increase too”.
After a review of the increase in mortgage interest rate, the Ombudsman rejected the Millars´ complaint on the grounds that the relevant clause in their finance agreements stated that the bank would alter the rate “in response to market conditions” and not “in line with general market interest rates”. The Ombudsman ruled that this distinction was significant and released Danske Bank from maintaining interest rates in line with those issued by the European Central Bank.
As they were not happy with the review, Kenneth and Donna Millar appealed the Ombudsman´s decision to the High Court, where Mr Justice Gerard Hogan found fault with the decision of the Financial Services Ombudsman. The judge said that text of the clause was ambiguous in the “general factual background against which the contract was entered into” and that the Millars were justified in objecting to the mortgage interest rate increase.
Judge Hogan dismissed the Ombudsman´s original decision and said that the Service should review the increase in the mortgage interest rate once again “in a manner not inconsistent with this judgement”.
The Consequences of Judge Hogan´s Decision for Other Variable Rate Mortgage Holders
Judge Hogan´s instruction to the Ombudsman to review the increase in the mortgage interest rate has implications for approximately 207,000 mortgage holders in Ireland who have variable rate mortgages like the Millar´s – almost 30 percent of the Irish mortgage market – and who now have a precedent against which to challenge a mortgage interest rate increase.
Significantly Mr Justice Gerard Hogan did not rule that Danske Bank had acted unfairly or were in breach of contract, or instruct the Millars´ lender to reveal how the couple was risk-assessed. Furthermore, the Millars have always been up-to-date with the repayments on their seven mortgages, and the verdict in this case means that other variable rate mortgage holders will have to find fault with their mortgage agreement if they want a review of an increase in a mortgage interest rate.
If you are one of the 30 percent of the Irish mortgage market that has a variable rate mortgage, and you would like to know more about reviewing an increase in a mortgage interest rate, please do not hesitate to contact our Legal Advice Centre to speak with an expert on contract law. Although we cannot guarantee a successful conclusion, we will be able to advise you of your rights and how it may be possible to initiate a review of any increase in your mortgage interest rate.
Posted: August 22nd, 2014
A man from County Wicklow has resolved his refuse truck injury claim against Dublin City Council after a High Court judge awarded him almost €5 million compensation.
Padraig Hearns (39) – a first class steward for British Airways – was attacked during a night out in Dublin on 23rd April 2007 and left lying in the road on Sycamore Street in the city´s Temple Bar area. As he lay dazed in the road, Padraig was run over by a Dublin City Council refuse truck and suffered a fractured skull and broken arm among many other injuries.
The operators of the refuse truck failed to notice Padraig as they drove off, and it was sometime later that he was taken to hospital; where he was put into an induced coma. Padraig underwent several operations for his injuries, but such was the extent of the brain damage that he suffered, he will never be able live an independent life or work again.
Padraig´s parents from Hollywood in County Wicklow made a refuse truck injury claim against Dublin City Council. The local authority denied its liability for the injuries that Padraig had sustained and contested the claim on the grounds that the refuse lorry operators could not be held at fault for Padraig being attacked and being left lying in the road.
The case went to the High Court, where Mr Justice Michael Peart was told that Dublin City Council had broken its own by-laws – implemented just three months earlier – by allowing its refuse truck operators to collect rubbish in the Temple Bar area between the hours of 12:00pm and 6:00pm. Had they adhere to the regulations, Padraig´s counsel argued, the tragic accident would not have occurred.
Judge Peart found in Padraig´s favour, commenting that the operators of the refuse truck had a duty of care to ensure it was safe to drive the vehicle through the narrow streets of that part of the city. The judge said that had one of the operating team remained outside of the truck as it moved from premises to premises, they would have seen see Padraig lying in the path of their vehicle.
The judge awarded Padraig €4,885,888 compensation in settlement of his refuse truck injury claim – which included €266,341 for Padraig´s loss of earnings, €350,000 for the pain and suffering he had experienced in the past and would experience in the future and €3,485,000 towards future care expenses. The judge also awarded legal costs against Dublin City Council.
Posted: December 10th, 2013
A claim for a black eye injury, made by a UCD student who had volunteered to assist in an acupuncture training course, has been resolved in the Circuit Civil Court.
Judge Jacqueline Linnane at the Circuit Civil Court heard how, In April 2010, Bernadette Poleon from Dunboyne, County Meath, volunteered to participate in a clinical acupuncture training course that was being run by the Irish Institute of Traditional Chinese Medicine in Ranelagh, Dublin.
During the acupuncture training course, one of the students inserted needles below each of Bernadette´s eyes – the one below Bernadette´s right eye later being repositioned by a supervisor on the course.
Later that day, forty-five year old Bernadette – who is a psychology student at University College Dublin – started to experience puffiness below her left eye and, within two days, a substantial amount of yellow and black bruising appeared around her eye.
Although the puffiness and tenderness reduced within a couple of days, the appearance of bruising remained for seven weeks – causing Bernadette severe embarrassment whenever she tried to explain to friends how the injury occurred.
Having sought legal advice, Bernadette made a compensation claim for a black eye injury against Bellfield Consultants Ltd, the owners of the Irish Institute of Traditional Chinese Medicine.
Bellfield Consultants denied their liability for Bernadette´s injury and, when court proceedings were issued, presented a full defence against the claim for a black eye injury. However, at the Circuit Civil Court, Judge Linnane heard that the case was before her for the assessment of black eye injury compensation only.
After hearing the circumstances of Bernadette´s injury, and the embarrassment she had suffered as a result, the judge awarded Bernadette €6,000 in compensation for a black eye injury and costs at the District Court level.
Posted: September 26th, 2013
A woman who developed a neurological illness after an accident on a supermarket escalator has been awarded $9.9 million compensation by a jury in New York.
Rose Nudelman (51) had just completed her shopping in her local Costco Supermarket in New York, when she and her husband took their loaded supermarket shopping trolley onto the ascending escalator between floors.
The tread on the escalator had been made to secure the wheels of the shopping trolley, so that customers did not have to retain hold of their trolleys in order to prevent them rolling back down the slope. However, while Rose and her husband were ascending the escalator, the trolley wheels slipped from their mountings and the trolley rolled down the escalator, catching Rose on the wrist.
Although it did not appear at the time that she had sustained any significant injury, Rose and her husband reported the incident to the management of the supermarket. However, within two weeks of the incident happening, Rose began to experience issues with walking which deteriorated quickly so that she was only capable of hobbling around her home with the aid of a walking stick.
Rose went to see her doctor who, after an extensive series of examinations, diagnosed her with the neurological illness “Complex Regional Pain Syndrome” – saying that its cause was nerve damage due to being hit by the shopping trolley on the escalator.
As her condition deteriorated further, Rose sought legal advice from a solicitor, and made a claim for compensation for her accident on an escalator against Costco. Costco Supermarket rejected the claim that Rose´s injury was attributable to her escalator accident and alleged that she had exaggerated the level of her injury to justify her compensation claim. Rose´s solicitor however believed that his client had a strong case, and issued court proceedings.
Costco Supermarket continued to deny their liability and refused to settle the claim for compensation for an accident on an escalator out of court. However, when the case went to trial, the jury found in Rose´s favour and awarded her $9.9 million in compensation for an accident on an escalator.
The company who insure Costco Supermarket have indicated that they will appeal both the verdict and the size of the award, but Rose´s solicitor commented after hearing about the possible appeal that no amount of compensation would convince anybody he knew to trade places with his client.
Posted: August 15th, 2013
The Royal College of Surgeons in Ireland (RCSI) has produced a report in which it finds that compensation claims for injuries due to a missed diagnosis are the most common cases brought for GP malpractice.
“The Epidemiology of Malpractice Claims in Primary Care: A Systematic Review” was prepared for the RCSI by the Centre for Primary Care Research in Dublin and published recently in the British Medical Journal. The aim of the review was to identify which areas of primary care in Ireland required specific attention when preparing educational and risk management strategies for GPs and other front-line healthcare professionals.
Among the key findings in the review, the misdiagnosis of cancer – specifically lung cancer, colon cancer and breast – and medication errors stood out as the main grounds for adult patients making GP malpractice claims, while the majority of claims for injuries due to a missed diagnosis for children centred around cases of meningitis and appendicitis.
The lead researcher for the review – Dr Emma Wallace – acknowledged that reviewing cases of GP malpractice may not be the preferred methodology to identify in which areas of primary care the most attention was required; however, she did accept that compensation claims for injuries due to a missed diagnosis were creating an environment where GPs and front-line healthcare professionals were practising more defensively.
The review found that more patients are being referred by GPs to consultants than ever before – potentially delaying an accurate diagnosis and placing further pressure on the Irish health service – because of the risk of litigation should they make a mistake. It also highlighted that medical practitioners, against whom claims for injuries due to a missed diagnosis are made, are often subject to higher levels of stress which reduces their effectiveness to make correct diagnoses and places more patients at risk of an injury or the avoidable deterioration of an existing condition.
Dr Wallace – who herself is a GP – said that the problems identified in “The Epidemiology of Malpractice Claims in Primary Care: A Systematic Review” should provide an insight into the nature of adverse events in GP´s surgeries and hospital outpatients´ departments, and the reasons why they happen. This should then reduce the number of claims for injuries due to a missed diagnosis in Ireland and eventually improve the standard of healthcare provided by front-line health professionals.