The musings by the Director of Public Prosecutions as reported HERE warrant a book written on them. He has pointed to the need for, and social value of whistleblowers.

This being a blog, a posting will have to suffice.

His musings were followed by a proposal from the Minister for Justice, the terms of which are currently obscure.

Assuming that there is no co-ordination between the Minister for Justice and the DPP, and assuming them to be decent, well-meaning office holders, why do these pronouncements appear as if the speaker was the first to address the problem?

The Labour Party tabled a Whistleblower’s Bill and it went nowhere. It was within the power of the Minister’s party to drive it, or to kill it. It was killed.

Transparency International has compiled a review of the lack of protection for whistleblowers in Ireland. See it HERE.

Transparency International recommend one single piece of legislation to protect (and promote) whistleblowing. As they point out, the UK did exactly that in 1998 with the Public Interest Disclosure Act. See it HERE
.
Of particular interest to this blog (we are personal injury lawyers, albeit multi-tasking) are the provisions of Section 27 of the Safety Health and Welfare at Work Act 2005. See it HERE.

Now read the obligations imposed on employees HERE by Section 13 (h) of the Safety Health and Safety at Work Act 2005.

The DPP thinks that recourse to the Employment Appeals Tribunal is cold comfort for a dismissed employee whistleblower.

Surely the Government knew this in 2005, if the DPP can know it now?

Sometimes it is difficult for lawyers to recognize who is the boss.

In Kerr v Molloy and Sherry (Lough Egish) Ltd. [2006] IEHC 364, the defendant contended that the Plaintiff, a contract packer, was more experienced than his then supervisor, an assistant Operations manager and was therefore responsible for the accident in which he was injured. In fact he was working with the supervisor and gave evidence that he believed that the boxes they were stacking were improperly stacked and had informed the supervisor of this. The boxes fell on the Plaintiff. The defendant contended the Plaintiff should have refused to continue the work in the light of his perception. The judge said of this:

“At the hearing of this action, the claim of contributory negligence on the part of the Plaintiff was advanced on a single ground, that the Plaintiff had more experience in stacking these boxes in containers than Mr. O’Donoghue, so that, even though Mr. O’Donoghue was Assistant Operations Manager of the first named Defendant and, the Plaintiff a contract packer provided by the second named Defendant, the Plaintiff ought to have refused to continue with the work when Mr. O’Donoghue, for whatever reason, continued to build up the row of boxes without staggering the vertical spaces between the individual boxes. I find that the evidence did not support the contention that Mr. O’Donoghue had less experience in this work than the Plaintiff, so that he should be regarded as the helper and the Plaintiff found to be the person in charge of the operation. Mr. O’Donoghue’s own evidence clearly demonstrated that he had ample knowledge and very considerable experience of stacking these boxes in containers. In cross examination Mr. O’Donoghue accepted that he would not expect the Plaintiff to challenge him on any aspect of the job. The Plaintiff protested that having pointed out to Mr. O’Donoghue the possible danger involved in stacking the boxes in the manner in which he was doing it, he could hardly be expected to leave the job and go across to the office and complain to Mr. Bannigan, the Operations Manager. I find that it would be wholly unreasonable to expect the Plaintiff to do this.”

What is often overlooked on these occasions is the effect of a finding of breach of statutory duty against an employer.

On this point the judge said:

“In the Plenary Summons and in the Statement of Claim, the Plaintiff pleads his case both in negligence at common law and for breach of statutory duty pursuant to the provisions of the Safety, Health and Welfare at Work Act, 1989 and, in particular s. 6 and the Fifth Schedule of that Act. I find that the Plaintiff was not guilty of contributory negligence in relation to his claim based upon breach of statutory duty and is therefore entitled to succeed in full against the first named Defendant. It is unnecessary for the court in these circumstances to go on to consider the position in relation to his alternative claim based upon negligence at common law.”

This is a standard outcome of claims against employers by employees.

The revelation that Cardinal Brady was at the heart of a church hushing-up of crimes of Fr. Brendan Smyth prompts a reflection as to the malign uses of documents imposing confidentiality or curtailing rights.

In Byrne v Ryan [2007] IEHC 2007, the court considered a “consent” which a patient had signed prior to surgery. The Defendant referred to the terms of the consent suggesting that the Plaintiff might;

“…not become or remain sterile..”

The Defendant contended that this was a consent to the actual outcome of the sterilization operation (the operation had failed). The court rejected the argument, saying;

“It merely records the patient’s understanding that there is a possibility of failure.”

The courts have frequently rejected arguments that claims have been settled, as purportedly evidenced by “releases” signed by Plaintiffs.

In Horry v Tate & Lyle Refineries Ltd. [1982] 2 Lloyd’s reports 416, the Plaintiff suffered a personal injury at work. There was a possibility of a recurrence of the injury. The employer’s insurers negotiated a settlement with the Plaintiff who was not legally represented and was not independently advised. The injury did recur and the Plaintiff issued proceedings in respect of the original incident. The Defendants pleaded the “settlement”. The court ruled that the insurance company owed the Plaintiff a fiduciary duty of care to ensure that he got independent legal advice. They were also obliged to reveal the contents of their medical report on him, to him, and where their interests conflicted with his they owed him a fiduciary duty. Consequently, the settlement was not binding on him.

For more information see our Colour Supplement HERE

Many claims against employers can and will fail when the claim is made as one of negligence by the employer. However, because of the multitude of duties imposed on employers by statute, it is common for the employer to be found liable to the employee for an injury even where the employer has not been “at fault” (meaning, here, “negligent”).

The duty imposed by Regulation 28 of the Safety, Health and Welfare at Work (General Application) Regulations 2007 is a case in point. Its predecessor, Regulation 19 of the Safety, Health and Welfare at Work (General Application) Regulations 1993 was described in Doyle v Electricity Supply Board [2008] IEHC 88 as

“In the instant case, I have found that the plaintiff has not established a breach by the defendant of any duty at Common Law owed by the defendant to the plaintiff as his employer.
However, with effect from 22nd February, 1993, (when the Regulations of 1993 came into force), a statutory duty was imposed upon the defendant which has been described (by Kearns J.at p. 263 in Everitt) “as virtually an absolute duty” which requires the defendant “ . . . to ensure that . . . the necessary measures are taken so that the work equipment is suitable for the work to be carried out or is properly adapted for that purpose and may be used by employees without risk to their safety and health”.”

Regulation 28 (and Regulation 19 before it) imposes duties on employers relating to work equipment. The equipment must be suitable and free of risk to the employee. It is not necessary to prove that the risk was known to the employer; all that is required is to prove the injury and relationship of the injury to the equipment.

It is far from obvious what money is.

That the price of gold has risen to an all-time high is evidence of this.

Of what real value is a piece of gold? It has some industrial use, but not much.
It endures over time, but basalt does likewise and, indeed, in the context of a human lifetime the endurance of gold is nothing outstanding; it shares that property with too many other substances. Why should it increase in value relative to any, or all, national currencies, as it has done?

It is in fact a reference point; the currencies have fallen in value relative to it.

Probably money is an economic notion more than a legal one. That notion is subject to change; consider e-money.
E-money can be encountered in a chip card which has been “loaded” with “value” and which can be used to discharge an obligation, limited to the value in the card. The possession of the card is sufficient to get the value of it. Significantly, the State need not, and usually does not, have any involvement in such e-money.

One theory of money, “fiat money”, bases it on the State control of the monetary system and the issuing of notes and coinage. “Nominalism” is an essential element of the State theory of money. Nominalism was recognized by Aristotle in the Nichomachean Ethics;

… money has been introduced by convention as a kind of substitute for a need or demand … its value is derived not from nature but from law, and can be altered or abolished at will”.

It is a principle of Irish (and UK) law that the purpose of the award of compensation by the courts is to, insofar as money can, place the injured party in the same position as if he/she had not been injured.

The State theory of money is, potentially, at odds with that principle because nominalism disregards everything save the attributed value to the currency or State “unit of account”. Nominalism disregards the changing value of the currency. It takes no account of inflation or depreciation.

The compensation principle is an expression of another principle; the need to do justice. The acceptance of Nominalism is, when it comes to compensation for injury, a breach of the requirement to do justice.

Un-adjusted money value may, in a period of inflation, greatly benefit a wrongdoer. The wrongdoer may deprive a victim of value but, due to the effects of inflation, ultimately be obliged only to make restitution of something of lesser value than the benefit he/she gained.

The Book of Quantum of the Personal Injuries Assessment Board has a similar effect.
It sets out “values” for some types of personal injury and in doing so clearly accepts the State theory of money and inherently accepts the principle of nominalism. In truth, the “values” in the Book of Quantum are not fixed values; they change to a greater or lesser degree and the underlying trend historically is to have them depreciate in value, relative to everything other than the attributed value of the currency.

The UK courts have avoided the problem by affirming that the “value” at the date of judgment is the appropriate value to determine proper compensation – [Ascot Midland Baptist (Trust) Association v Bermingham Corporation (1970) AC 874]. This approach involves taking account the value of the money; it takes account of the effect of inflation. A Book of Quantum does not.

It is worth noting that the UK Law Commission rejected the idea of the establishment of a “Compensation Advisory Board” i.e. a UK PIAB.

Conventionally, to propose a debate is to, impliedly, claim to be reasonable. Calling for a debate overlooks the fact that we cannot, and should not, submit everything to debate; where things are settled and agreed, they should not be opened to examination (and procrastination), unnecessarily. The call may be further invalid (and in bad faith), in not really proposing a debate, but simply using it as an announcement of intended, forced, change.
That’s the reality of the debate proposed by Colm McCarthy, the economist, on compensation for personal injuries.
He, in effect, is proposing to reduce that compensation. His proposal could be ignored if we did not know that he expresses the view of Brian Cowen, the Taoiseach; that is, he expresses the view of the Government.
This is valuable. As a consequence of knowing his connections, we have an insight into the Government’s view of NAMA. Mr. McCarthy has proposed that NAMA be used to process the payment of personal injuries compensation.
Currently, the Government has tunnel vision when it comes to money and payments; it wants to reduce it’s liability to pay them. Imagine our scepticism if Brian Cowen claimed, now, that he wished to be “fair” in proposing, or introducing, a new method of delivering compensation to injured persons. (Consequently, we have Mr. McCarthy flying the kite).
For a long time the Executive has undermined the constitutional principle that the violation of bodily integrity be vindicated.
a) It abolished the use of civil juries to determine liability and quantum in personal injury cases.
b) It has reduced the time within which an injured person must issue proceedings against a wrongdoer, before being statute barred and deprived of the right to be compensated.
c) It has imposed a cumbersome procedure on personal injury claimants by means of the Personal Injuries Assessment Board (“PIAB”) (aka “the Injuries Board”).
d) It has attempted to block access of injured persons to experienced personal injury lawyers.
e) It has introduced intimidatory procedures for Plaintiffs in the personal injury litigation process.
In Ireland, as in the UK, we have formally addressed the necessary, process of reforming our laws.
We have a Law Reform Commission. We have a Committee on Court Practice and Procedure. We have a Constitution Review Group. We have an Oireachtas Committee on the Constitution.
In short, we are not lacking in mechanisms for correcting archaic legal elements.
Now, it seems, we have one, possibly two, more. They are Colm McCarthy, and NAMA.

McGarr Solicitors have opened a new “window” in cyberspace. You can see it HERE.

It is intended to more clearly explain legal issues to victims of personal injury.

Those legal issues can be complex.

The government introduced the Personal Injuries Assessment Board in 2003. This was professedly to benefit the people of Ireland by reducing the premiums for insurance cover.

That may or may not have happened, but the obvious beneficiaries were the insurance companies operating in Ireland and the obvious losers were the Irish victims of personal injury (not “Irish” but “injured in Ireland”).

Separately, the government reduced the time after which a personal injury claim was statute barred, from three years to two years. It also introduced new and onerous procedures for injured persons to adopt, as they sought recovery of compensation from the person or persons who had caused them the injury.

However, these issues have been addressed elsewhere in this website.

Instead of repeating them, this post can refer now, albeit gratuitously, to rotogravure, or rather its absence from the process for producing our new website. Rotogravure was a printing technology, remembered, if for nothing else, by a citation of it in the Irving Berlin song, “Easter Parade”.

When, if ever, will someone write a popular song incorporating the word “inkjet” in it?

Can it match “rotogravure” for poetry?

I think not.

Accidents from errors in manual handling are the commonest source of injury in Irish workplaces.

If such an injury happens it invokes, potentially at least, the assessment of the event from the perspective of the duties of employers regarding such events. Chapter 4 of the General Application Regulations 2007 (SI 299/2007) particularly apply.

Any injury may result for these errors, but back injury dominates.

An employer is obliged

a) to seek alternative methods to manual handling;
b) to keep any such alternatives in working order;
c) to train staff in the techniques of manual handling as required;
d) to up-date training where this appears necessary;
e) to ensure that staff do not lift weights heavier than those stipulated in the weights guidelines (Health and Safety Authority);
f) generally to assess the risk where manual handling is unavoidable

Below are whimsical examples of pleading in a personal injury claim. The pleadings are not in order and do not conform to current pleading requirements for personal injury actions. Nevertheless they reflect the strange world of conflict in a personal injury lawsuit.

2009 No. 123
The High Court

BETWEEN Joseph Brush Plaintiff

and

Plastic Surfaces Ltd. Defendant

STATEMENT OF CLAIM

Delivered the 1st Day of April 2009 by
Skin & Bone Solicitors for the plaintiff
of Victory House Broad Street Dublin 1

1. The Plaintiff is a housepainter and he resides at 54 Shady Lane Rathcormac Dublin 10.

2. At all material times hereto the plaintiff was employed as a painter at the defendant’ s plastic-coated fabrics factory at Leafy Hollow Rathcormac Dublin 10 which said premises is owned and managed by the defendant.

3. It was a term of the said contract of employment between the plaintiff and the defendant and/or it was the duty of the defendant to take all reasonable precautions for the safety of the plaintiff while he was engaged upon his work, not to expose him to a risk of damage or injury of which they knew or ought to have known, to provide and maintain safe and adequate and suitable plant, tackle and appliances to enable the plaintiff to carry out his work in safety, to take all reasonable measures to ensure that the place where he carried out his work was safe and to provide and maintain a safe and proper system of work.

4. On or about the 1st day of March 2009 the plaintiff was in the course of his aforesaid work, lifting a roll of plastic- coated fabric when he injured his back. In descending a set of steps immediately following his back injury the plaintiff slipped on the said steps and lost his footing and fell down several steps, knocking over and burning himself with the contents of an open jar of hydrochloric acid which was standing at the bottom of the said steps.

5. The plaintiff injured his back, fell and burned himself with hydrochloric acid as aforesaid owing to the negligence and breach of duty on the part of the aforesaid defendant its servants or agents, in or about the management, maintenance and supervision of the aforesaid premises and the prevention of grave risk to the plaintiff.

Particulars of Negligence and Breach of Duty (including Statutory Duty)

A. Failed to provide the plaintiff with safe or adequate mechanical lifting equipment or assistance in the performance of his task of lifting the roll of plastic-coated fabric as aforesaid.

B. Failed to instruct the plaintiff in respect of safe and adequate lifting arrangements for the lifting of heavy or awkward loads.

C. Required the plaintiff to perform the said lifting operation without assistance.

D. Failed to take appropriate or any steps to obviate the said back injury accident.

E. Failing to provide any or any adequate lighting on the said staircase when they knew or ought to have known that the presence of slippy plastic or other foreign material was a common hazard on the said staircase which could not be spotted by the person using the said staircase in the absence of adequate lighting thereon;

F. Failing to take any or any adequate precautions for the safety of the plaintiff while he was engaged on his aforesaid work;

G. Exposing the plaintiff to a risk of damage or injury of which they knew or ought to have known;

H. Failing to provide a safe and proper system of work;

I. Failing to provide any or any adequate supervision;

J. Exposing the plaintiff to unnecessary and avoidable risk;

K. Failing to warn the plaintiff of the dangers presented by slippy plastic and other foreign material on the said staircase when the lighting thereon was inadequate;

L. Failing to provide competent workmates;

M. Failing to provide a safe place of work.

N. Leaving a jar of dangerous and corrosive chemical open where it might be spilled and injure the plaintiff especially in his distressed state.

O. Failing to warn the plaintiff of the dangers presented by the jar of hydrochloric acid on the said staircase.

P. Requiring or permitting the plaintiff to lift and move a load which was heavy and likely to cause him injury in breach of Article 68 of the General Application Regulations 2007 (SI 299/2007).

6. As a result of the aforesaid matters the plaintiff suffered severe personal injury, other loss and damage.

Particulars of Personal Injury
The plaintiff experienced severe pain in his lower back on lifting the roll of fabric. He suffered further pain on falling down the staircase further injuring his back and his right foot. On striking the jar of hydrochloric acid the contents spilled out onto both of the legs of the plaintiff and pooled about him as he sat on the landing. It burned his hands, legs, feet and buttocks.
The plaintiff was taken to St. Cuthbert’s Hospital where he was examined on arrival. He was conscious but in considerable pain. He had two degree burns on his legs and feet with three degree burns on his hands and buttocks. His burns were dressed and he was then X-rayed for his back and leg complaints. Soft tissue injury of his back was diagnosed and he was prescribed bed rest and physiotherapy as soon as the acid burn injuries allowed. A fracture of the cuboid was first suspected based on the X-rays of the right leg. The plaintiff suffered severe pain from his back at this juncture and was prescribed pain killers. The plaintiff was suffering from pain in the lower back region, radiating down the right leg. He was found to have restriction of movement in the lumbar spine together with tenderness in the right lower and lumbar and buttock region. Straight leg raising was restricted.
The plaintiff’s above injuries caused and continue to cause severe pain and discomfort. His capacity to enjoy his work and life generally has been severely diminished by his injuries. His complaints continue, may be permanent and the onset of adverse sequalae cannot be ruled out.

Particulars of Special Damage

Hospital Bills (unascertained and continuing)
Doctors’ Bills (unascertained and continuing)
Chemists’ Bills (unascertained and continuing)
Travelling Expenses (unascertained and continuing)
Loss of Wages (unascertained and continuing)
Damage to Clothing (unascertained and continuing)

Michael Soap B.L.

To the Registrar
Central Office
Four Courts
Dublin 7

And:
Fat & Smooth
Solicitors for the Defendant
Corkscrew Lane
The Highway
Dublin 2

________________________________
2009 No. 123
The High Court

BETWEEN Joseph Brush Plaintiff

and

Plastic Surfaces Ltd. Defendant

DEFENCE

Delivered the 2nd Day of April 2009 by
Fat & Smooth Solicitors for the Defendant
Corkscrew Lane, The Highway Dublin 2

1. The defendant denies that the plaintiff was employed as a housepainter at their premises in Leafy Lane Rathcormac Dublin 10 as is alleged or at all.

2. The defendant denies that the plaintiff was lifting a roll of plastic-coated fabric as is alleged or at all.

3. The defendant denies that the plaintiff fell on descending the staircase as is alleged or at all.

4. The defendant denies that the plaintiff struck a jar of hydrochloric acid on the staircase or that same spilled on him as is alleged or at all.

5. The defendant denies that the plaintiff was caused to suffer, or did suffer, the onset of severe back pain as is alleged or at all.

6. The defendant denies that the plaintiff was caused to suffer an injury to his right leg as is alleged or at all.

7. The defendant denies that the plaintiff was caused to suffer burns to his legs, feet, hands and buttocks as is alleged or at all.

8. The defendant denies that the plaintiff suffered severe personal injuries, loss or damage as is alleged or at all.

9. If the plaintiff did suffer personal injury, loss or damage (which is denied) the defendant denies that the same was caused by the negligence or breach of duty of this defendant, it’s servants or agents, as is alleged or at all.

10. If the plaintiff did suffer personal injuries, loss or damage (which is denied) then the defendant says that the same was suffered or alternatively contributed to by the negligence of the plaintiff.

Joe Sunlight B.L.

To the Registrar
Central Office
Four Courts
Dublin 7

And:
Skin & Bone
Solicitors for the Plaintiff
Victory House
Broad St.
Dublin 1

It is not to be forgotten that Section 4 of the Vagrancy Act 1824 was in regular use by the State until the decision in King -v- The Attorney General [1981] I.R. 233.

Under Section 4 a “suspected person” and a “reputed thief” could be convicted of an offence of, in practice, trespass. Not so, upstanding members of society.

As the court said in King;

…the ingredients of the offence and the mode by which its commission may be proved are so arbitrary, so vague, so difficult to rebut, so related to rumour or ill-repute or past conduct, so ambiguous in failing to distinguish between apparent and real behaviour of a criminal nature, soprone to make a man’s lawful occasions become unlawful and criminal by the breadth and arbitrariness of the discretion that is vested in both the prosecutor and the Judge, so indiscriminately contrived to mark as criminal conduct committed by one person in certain circumstances when the same conduct, when engaged in by another person in similar circumstances, would be free of the taint of criminality, so out of keeping with the basic concept inherent in our legal system that a man may walk abroad in the secure knowledge that he will not be singled out from his fellow-citizens and branded and punished as a criminal unless it has been established beyond reasonable doubt that he has deviated from a clearly prescribed standard of conduct, and generally so singularly at variance with both the explicit and implicit characteristics and limitations of the criminal law as to the onus of proof and mode of proof, that it is not so much a question of ruling unconstitutional the type of offence we are now considering as identifying the particular constitutional provisions with which such an offence is at variance.”

What is forgotten (not adverted to at all) is that the impulse to categorise persons so that some are to be victimised and others are not, is general.

For some time now, the Government and its supporters have consciously tried (and succeeded) to demonise plaintiffs in personal injury actions. This process has been underway for a long time. It began at least as far back as the 1980’s with the abolition of the civil jury in Ireland for personal injury actions. Under the civil jury system, a panel of ordinary people decided what the appropriate compensation should be for an injured plaintiff (subject to parameters decided by the Supreme Court).

More recently, the establishment of the Personal Injuries Assessment Board was widely seen as calculated to disadvantage plaintiffs in personal injury cases.

The fullest expression of this demonisation was seen in the Civil Liability and Courts Act 2004. This Act introduced radical new procedures and requirements particular to personal injury actions. Plaintiffs in such actions now had to face more and more obstacles in seeking the delivery of their constitutional right to redress.

This attitude has resulted in the growth of strange ideas. As an example, consider a fatal injury action. (Furey v Fitzpatrick & MIBI IEHC (1998)). The defendant has been negligent and has caused the death of a breadwinner. The dependants are entitled (under the Civil Liability Act 1961) to seek compensation for, among other things, the loss of income resulting to them from the death of their breadwinner.

However, the defendant then discovers something completely irrelevant to the issues in the action; the deceased person was not paying his/her proper taxes, if at all. The defendant now submits to the court that the dependants ought not to be compensated for their loss. (The defendant changes the focus from his/her wrongdoing to the supposed wrongdoing of the deceased person). This chutzpah received a respectful hearing in the High Court, less so, in another case, in the Supreme Court, but that it was given an outing at all is a warning of the ease with which what is called “the legal climate” can be used to ride roughshod over the rights of people who, inevitabley, are all alone when they confront their opponents, where the opponents have laid the ground for the battle long before they meet the plaintiff.

There are many important issues which are never discussed on doorsteps with political candidates at election time, but ought to be.

Vibration would not be readily seen, by workers, as a danger to health in the workplace. It is, and the injury can be serious.

Many industrial machines transmit vibration to the body. Some, like vehicles, can transmit the vibration to the full body. Others affect a limb or part of a limb.

Sustained exposure to vibration can produce permanent damage. Nerves and blood vessels may degrade and the limb will lose sensation. “Whitefinger” is a term for this kind of damage.

If alleviated promptly the sensation may return to the limb. Without attention, the onset of gangrene is a possible end result, requiring amputation of the affected limb or part.

A typical location for vibration injury is the carpal tunnel in the hand. The median nerve and nine flexor tendons pass through the carpal bones. With damage, the nerve can be pinched and produce numbness, tingling, burning, clumsiness and pain in the hand.

If machinery has not been properly designed the expense of “retrofitting” to eliminate the vibration may dissuade the employer from its obligations to keep the worker safe.

is a common and infrequently recognised cause of injury. It is an avoidable result of using many industrial tools such as chain saws, grinding, sanding, hammering or polishing tools.

Retrofitting is not easy when the whole machine is the cause of the vibration.

In a study in 1960 of 371 tractor drivers, long periods of tractor driving over rough terrain was shown to cause stomach complaints and spinal disorders. There was a direct relationship between the severity of the complaints and the length of service of the drivers. Kidney damage was also indicated by the presence of blood in urine.

For specific statutory duties on vibration see Part 5 Chapter 2 of the Safety, Health and Welfare at Work (General Application) Regulations 2007