1. They have dog trouble in the UK. See it HERE.

2. For once our Government, [which, like every other element of the State, is, rest assured, amongst the best in the world], is ahead of the UK government. Unlike the UK there is, here in Ireland, a two tier level of strict liability for damage caused by dog attack.

3. Here, under Section 21 of the Control of Dogs Act 1986 an owner of a dog is strictly liable for damage sustained by a person in a dog attack and for any injury done by a dog to livestock.

4. The effect of this is make the owner [which may mean the “occupier” in some circumstances] liable, without proof of negligence, for injury suffered by a person in a dog attack.

5. Good news for owners of livestock; they do not have to prove ATTACK by the miscreant dog, just injury to the livestock consequent on dog “doings”.

1. I have lost my savings in an investment with XXX Building Society. What can I do?

It depends on the facts. Deposits in a Building Society or a Bank are protected by the Government guarantee. Even with the collapse of Anglo Irish Bank and Irish Nationwide Building Society, the depositors with those institutions were secured and the deposits are available to be withdrawn. (In reality, all the deposits were lost in those institutions; it is the taxpayer who is replacing your lost deposit).

2. My savings were not a deposit when they lost their value. Can I still do something?

Other forms of “saving” are not as protected. If you purchased a bond it may be tied to general market values in say, the property market. The terms of the bond may govern your exposure to that risk.

3. I did not know of the risk when I bought the bond. Does that matter?

Yes, it matters a great deal. Only an unsophisticated investor would not have appreciated the risk; even so, the documentation given to you would have told you of the risk. However, if what you say is true, it shows you were an unsophisticated and vulnerable consumer. A consumer, at law, is not bound by unfair terms (or prohibited practices).

4. What is an unfair term or prohibited practice?

An unfair term is one falling into the definition of that phrase in SI 27/1995 as amended by SI 307/2000.

SI 27/1995 says:-

“…a contractual term shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer, taking into account the nature of the goods or services for which the contract was concluded and all circumstances attending the conclusion of the contract and all other terms of the contract or of another contract on which it is dependent.”

5. What does that mean?

It depends on the facts of the case. Pay particular attention to Paragraph 2 of the 3rd Schedule of Statutory Instrument 27/1995. Sub-paragraphs g), j) and l) of Paragraph 1 of the 3rd Schedule do not apply to:-

“…transactions in transferable securities, financial instruments and other products or services where the price is linked to fluctuations in a stock exchange quotation or index or a financial market rate that the seller or supplier does not control;”

6. Is that a reference to prevailing property market values?

It would appear not. (The Stock Exchanges do not maintain a direct “property index”). Furthermore, that limitation only applies to transactions “… where the price is linked…”. If the price of the transaction is not so linked, the limitation is not relevant.

7. What about prohibited practices. What are they?

They are listed in Section 55 of the Consumer Protection Act 2007. You should carefully read Section 55 (1) (t), which reads:-

“(t) making a representation to a consumer that is inaccurate to a material degree in respect of market conditions, or in respect of the possibility of finding a product, with the intention of inducing the consumer to purchase a product at conditions less favourable than normal market conditions;”

That indicates that any aggrieved “investor” should explore what were the normal market conditions at the time of “purchase” and compare them with the conditions represented to him/her. (All of this is a reference to misleading information given to the investor, not a reference to better terms being available elsewhere). So, if the consumer is misled into thinking that a bond is as safe as a deposit, that is a prohibited practice. Or if the consumer is misled into thinking that a bond is the same as a deposit but with a higher interest return, that is a prohibited practice.

8. I thought only consumers who bought “goods” as opposed to “services” were protected by the Consumer Protection Act?

You were mistaken. It applies to the supply of goods and services. The Act says:-

“” product ” means goods or services;”

9. If I can prove I was misled do I escape from the loss?

Possibly. Read Section 43 of the Consumer Protection Act 2007. Section 43 (1) provides:-

“43.- (1) A commercial practice is misleading if it includes the provision of false information in relation to any matter set out in subsection (3) and that information would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.”

Sub-section (3) (iv) refers to “…its benefits or fitness for purpose;” In short, if the consumer informs the trader of his or her purpose, the trader will be misleading the consumer if the product is sold avowedly for that purpose and it does not serve the purpose. Needless to say, if the consumer is misled as to the fitness for purpose of the investment, the consumer cannot make an appropriate transactional decision. There are many instances of misleading practices in the Section. The more instances that apply to any case, the greater the chance of prevailing in the struggle to get compensation.

10. What about the obligations on financial services practitioners to comply with SI 60/2007. Surely that is of assistance to consumers?

Possibly it is. To be sure, a consumer should always insist that the trader confirm, in writing, that it subscribes to, and complies with, the provisions of that Statutory Instrument (SI 60/2007). The Statutory Instrument embodies the regulations to which banks etc. are obliquely referring when they say in their advertisements that they “… are regulated by the Financial Regulator”. (We now know that the Financial Regulator was not regulating them). By procuring the reference in writing, the consumer will, without the possibility of contradiction or denial, get the benefit of the provisions of SI 60/2007 through the application of Section 45 (1) (c) of the Consumer Protection Act 2007.That Section reads:-

“45.- (1) A commercial practice is misleading if-
(a) it involves a representation that the trader abides, or is bound, by a code of practice,
(b) the representation referred to in paragraph (a) would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make, and
(c) the trader fails to comply with a firm commitment in that code of practice.”

11. Surely the Financial Regulator will look after me?

No. He may prosecute the offender, but he will not look after a consumer.

12. What about the Financial Services Ombudsman? Will he look after me?

He may, but be ready to urgently apply to the High Court in the event he makes a finding adverse to your interests. Under Section 57CI of the Central Bank Act 1942 as inserted by Section 16 of the Central Bank and Financial Services Authority of Ireland Act 2004, the adjudication of the Ombudsman is binding on a complainant. There is, according to the Ombudsman’s office, only 21 days from the date of the decision (not the date the Complainant learns of it) to lodge the appeal in the High Court. This is very inadequate and calculatedly so. See the substantial review of the Ombudsman process in the High Court JR decision relating to Enfield Credit Union and J & E Davy HERE.

13. Do I have to go through the Financial Services Ombudsman’s procedure?

No. You can litigate directly with the financial services provider in the appropriate court.

14. Is there an advantage in going to the court directly?

Yes. As noted by the High Court judge in the Enfield v Davy case, the court will not substitute its judgment for the decision of the Ombudsman. Consequently, if that High Court view of the legislation is correct (it may not be), a Complainant will lose the control over the complaint that litigation will give and will cede control to the Ombudsman, whose procedures may turn out to be cavalierly informal.

15. Is there a disadvantage in going to court directly?

Yes. It is much more expensive than the Ombudsman’s process. However, that disadvantage may be offset by the fact that the case will be heard in open court. The Ombudsman’s procedure is dealt with in private. It will often be well worth the extra expense to control the procedure and have the case heard in public. Furthermore, the application of consumer legislation is likely to be more rigourous in a court than in the Ombudsman’s process.

This blog has not been silent on negligence by auditors. See HERE and HERE and a suggested remedy to deal with major frauds HERE.

Every audit will follow a plan. If there is no plan, that’s evidence of negligence. The plan will show whether or not the auditor did his/her job properly. Of course if the “auditee” posts sudden enormous losses, that is evidence that there was a major problem in the auditee. Why did the audit not pick up those losses?

A profitable area for examination would the valuations of assets furnished to the auditee. Those valuations may have been provided by “independent” agents (auctioneers), commissioned either by the auditee or a third party. If those valuations were radically wrong that is a basis for litigation against the valuer to recover the loss arising from the deal or property which was the subject of the negligent valuation.

However, an auditor is obliged to take account of the possibility of fraud. Just because a valuation is on a file from an “independent” agent the auditor is not relieved of his/her obligation to consider whether the accounts show a true and fair view of the fiinances of the entity being audited. The fraud may be in the valuations.

Many professionals (doctors, solicitors, dentists, architects, surveyors etc.) provide services to “consumers”.
Section 2 (1) of the Consumer Protection Act 2007 defines a consumer:

“” consumer ” means a natural person (whether in the State or not) who is acting for purposes unrelated to the person’s trade, business or profession;”

Services are covered by the Act of 2007 explicitly and under the definition of “product” which “means goods or services”.
The Act prohibits misleading commercial practices and provides:

“46.- (1) A commercial practice is misleading if the trader omits or conceals material information that the average consumer would need, in the context, to make an informed transactional decision…”

The Act defines “transactional decision” as:

” transactional decision ” means, in relation to a consumer transaction, any decision by the consumer concerning whether, how or on what terms to do, or refrain from doing, any of the following:
…(e) exercise a contractual right in relation to the product;”

Section 46 transposes the terms of Article 7 of the Unfair Commercial Practices Directive into Irish law. The section prohibits the omission or concealment of information and/or the provision of such information if it is… “unclear”… etc. Prior to Section 46 it was not statutorily misleading to withhold relevant information from a consumer. “Contractual right” includes the right to issue proceedings and to know the factual basis of that right. In short, Section 46 of the Act of 2007 appears to require of a “trader” that he/she/it disclose to a consumer facts necessary to ground a claim of negligence against the professional.
Previously, the nearest pertinent law on this was seen applied in Gough v Neary & Anor. [2003] IESC

Judge Goeghegan said in that case:

“The plaintiff did not know that contrary to the false information given to her the hysterectomy was unnecessary until late 1998 or, indeed, some time after that when as a consequence of media coverage in relation to Dr. Neary and hysterectomies which he had carried out on a number of patients in connection with birth deliveries, she acquired the knowledge that the operation was unnecessary. That being so and in the absence of authorities, I would be of opinion that the plea of statute bar must fail.”

The Consumer Protection Act 2007 appears to have moved the focus from the positive action of the Defendant to the deprived (of knowledge) state of the Plaintiff.
Concomitant rights of discovery would seem to follow in any litigation where the Plaintiff is a “consumer”. Current rules of court do not appear to recognize this.

Where the professional is in the building business (or is a builder), Section 46 of the Act of 2007 will affect the “contractual” duty on such a professional of making disclosure of defects in, say, design, even after the completion of the contract.
See New Islington New Islington and Hackney Housing Association Ltd v. Pollard Thomas and Edwards Ltd [2000] EWHC Technology 43.

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.

Readers will have seen reference HERE to a plea in a medical negligence case as to the meaning of a “consent” signed by the patient (who was having an operation to make her sterile).

In Fitzpatrick v National Maternity Hospital [2008] IEHC 62 the Defendant claimed that the mother (in labour) declined an episiotomy or a forceps-assisted birth (leading to the damage to the infant). The court rejected this plea, and rejected the evidence of the Defendant, intended to evidence it.

In fact the evidence from the defendant was unequivocal; it alleged the parents had each rejected the offered treatment in circumstances where the staff said…

“…they could not be responsible for the consequences for her or her baby.”

… if the mother did not agree to the proposed actions.

The court said:

“I find on the evidence that Senior Midwife O’Dwyer did not, nor did Dr. Wiza, nor indeed did Staff Midwife Murphy (though on the evidence it was hardly her place to do so given the presence of the others) explain the severity of the plaintiff’s condition to either Mrs. Fitzpatrick or Mr. Fitzpatrick at any time prior to the birth of the plaintiff. I cannot imagine how it could be legitimately stated that this couple were extremely difficult to deal with in labour. I have already found that they were encouraged to and did formulate a birthplan which was given to and discussed with Staff Midwife Murphy on Mrs. Fitzpatrick’s admission to the labour ward, who then brought Senior Midwife O’Dwyer into the discussion.”

Errors of judgment on the probability of an event are usually incorrigible. In short, even evidence that we are wrong will not persuade us that we are wrong in making a judgment as to whether something is or was probable or not. This is a serious problem. If we remain unaffected by evidence we are very unlikely to seek the advice or opinion of a statistician or other expert to help us estimate the probability of an event.

Road traffic accidents are common, but we rarely witness them happening. If we made a judgment of their frequency based on our experience, we would be wrong.

The title to the post is a tongue-in-cheek reference to “law” as in “law blog” and is, generally, a solecism.

The “law” is a reference to a common error. If we see a roulette wheel or some other random generator device favour red five times in sequence, we believe that the chance of it showing black, the alternative, on the next spin is greater than it showing red. For most people, this is a harmless error, excepting compulsive gamblers and property developers.

The courts, however, engage in exactly this exercise when they decide if something was or was not foreseeable. Clearly, evidence that something is common will secure a judgment that it was foreseeable, but an absence of evidence of the frequency of an event is not itself a basis to infer the frequency of an event; it is evidence of its being overlooked. The overlooking may be by the parties to litigation, or their lawyers, or it may be by the State or statisticians generally.

What is the likelihood of suffering injury from systemic failure in the Irish health system? Not very high, but not a remote possibility either.

We should remember what the statistics from the Personal injuries Assessment Board show us; Road Traffic Accidents are the major source by far of personal injury in Ireland. Even though PIAB does not assess medical negligence claims, such claims would never exceed the Road Traffic claims in frequency.

For more information see our Colour Supplement HERE

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

See the post “Gotcha?” below. In Clifford v Drymond [1976] RTR 134 CA the Plaintiff had been struck by a car at a pedestrian crossing. The court, accepting a calculation that the car that hit her had been traveling at not more than 30 mph and was about 75 ft. from the crossing when the Plaintiff began to cross, decided she had not been guilty of contributory negligence. She was 10 ft. onto the crossing when she was hit.

The appeal court found she was negligent to the extent of 20%. They said she should have allowed plenty of time to the car to stop or slow down and either saw the car or failed to see the car and was negligent in either event.

For more information see our Colour Supplement HERE

“The Green Cross Code” is for pedestrians.

The equivalent for motorists is more extensive. However, any amount of rules will be wasted if a driver has a defective attitude to his/her “rights”.

Long before the motorcar appeared, the roads were used by pedestrians and animals, particularly horses. It is within living memory that a large cattle market thrived at the top of Prussia St. on the North Circular Road in Dublin and the cattle were herded down the NCR to the docks for shipment to, usually, the UK. All that is gone now.

What motoring “entitlements” could be asserted in circumstances like that?

With the departure of the animals, only pedestrians remain to hinder the motorist. Pedestrians, being more malleable and responsive than animals, avoid offering themselves as a hindrance, for good reason.

Who has not been challenged by a motorist for having the temerity to walk across a T-junction, obstructing a turning car? Most pedestrians anticipate the car and yield to it, although the right of way generally rests with the pedestrian.

What hope, then, that a motorist would anticipate a momentary error by a pedestrian in a “refuge” on a dual carriageway? The self-same driver is, after all, in the “fast” lane as he/she zips past within inches of the pedestrian.

The fact is, a driver is obliged to drive in such a manner and at such a speed as to avoid a pedestrian who MAY step out onto the roadway. That implies that it is an obligation to SEE the pedestrian and, probably, to LOOK AT the pedestrian.

We see much of this in McDermott v McCormack [2010] IEHC 50.

The Defendant driver admitted he did not see the Plaintiff pedestrian. The Plaintiff was an admirable witness, given that he was thrown into the air by the Defendant’s taxi. The Defendant gave evidence of the Plaintiff’s head hitting his windscreen. The judgment does not record the Plaintiff’s evidence in detail on the point, but if it was tendered it would probably have been in terms of the Defendant’s windscreen hitting him on the head.

The case looks like one of excess of ambition by the defence. They were in possession of a report from a hospital showing the Plaintiff had been very drunk when the accident happened, but, as the judge remarked;

“…He was an alcoholic. Unfortunately, he still is. That does not disentitle him to damages.”

In the event the court found (without reference to the Green Cross Code, it not being law), the Plaintiff was 50% responsible for the accident (there was no crossing point on the road at the point of the accident) and reduced the damages from €266,758 to €133,379.

For more information see our Colour Supplement HERE