This means that confusion as to who is or is not an employee need not deprive an injured person from securing proper compensation when injured in a workplace.

The employers duty includes ensuring:

That the employer provide employees with the necessary machinery and tools to complete the job. Those tools and machines are to be maintained in a safe condition.

The workplace must be kept in a safe, tidy condition with floors, doors and gates clean and clear and free from hazards.

The employer is vicariously for the negligence of his/her employees, so a worker injured by the negligence of a fellow worker is entitled to compensation from the employer.

Employees working at a height are protected by S. I. No. 318/2006 – Safety, Health and Welfare at Work (Work at Height) Regulations 2006.

Taken literally, we can confidently say that it is a universal social principle that compensation be paid where loss is suffered and the liability to pay for that loss lies with someone other than the victim.

This formulation is very wide; it will cover cases of injury arising from negligence, say, (See HERE for a treatment of Tort law in common law jurisdictions) but also claims for indemnity under an insurance contract.

The principle is not undermined by individual failures in making payment.

Taken with the provisions of domestic law a regional example of that universal principle is to be found in the European Convention on Human Rights (Article 6).

We are now, unfortunately, familiar with some compensation principles which, by arcane means, apply when banks fail. Certain creditors of such banks are compensated for their losses arising from default. The compensation is so certain that the default is scarcely admitted and is, for practical purposes, imperceptible. By those arcane means the liability to pay the compensation is passed to the citizens of the country responsible for supervising the failed bank. (The arcane means are not legally binding means).

It was always clear that the phrase “compo culture” was not an attempt to deny any compensation to any and all claimants; it was directed against one small class of persons, those persons who had been personally injured by negligence or breach of statutory duty. In effect, it was a brazen effort, if taken literally, to repudiate the obligation on wrongdoers of remedying the losses they had inflicted on others.

Life is complicated; consequently it has come about that the liability to pay compensation for personal injury frequently rests on both a liability in negligence and a liability under a contract of insurance. We see this in Domican v AXA Insurance Ltd. [IEHC] 2007 where the judge remarked that the plaintiff and the defendant had a relationship with each other (arising from the fact that the defendant had agreed to insure and indemnify a person whom the plaintiff claimed had injured him through negligence). In the UK that relationship is expressed in a civilized way in the Third Parties (Rights Against Insurers) Act 2010.

Ireland has no such legislation (and no proposals to remedy the situation). The UK made such provision as far back as 1933.

The Irish State has a very poor record in defending the constitutional right to compensation for personal injury. That should come as no surprise when we reflect on the reason why the Minister for Defence (and Ireland consequently) became liable to compensate soldiers in what was known as “the Army deafness cases”. A civil servant had consciously decided not to make provision to protect the hearing of soldiers from exposure to loud and damaging noise. That decision was recorded and the record was obtained by the claimant soldiers, all of whom could show they suffered hearing loss or damage following that decision. (Even without the decision the State would have been liable; it was not a novelty that loud noise is dangerous). The reason for the poor record is straightforward; Ireland clearly has (or had) a very poor quality of civil servant and politician. (In the Irish Times of 11^th December 1997 a headline read; “Smith says deafness claims are wrong and immoral”. Smith was the Minister for Defence.)

It is generous to say Ireland’s record is poor on this issue. Ireland is malevolent on the point. See HERE and HERE for this writer’s opinions.

[The United States of America produced its Declaration of Independence in cursive script (HERE)]

So it is with other standards. Here in Ireland we call cursive script joined-up-writing and we aspire to that, but we have little tradition of its cousin, joined-up-government.

In Ireland, government must be conducted in accordance with the Irish Constitution and in pursuit of its objectives. One of those objectives is to vindicate the person [or the good name] of the citizen. That means that if a person is injured the State must and will ensure the citizen is compensated by any wrongdoer responsible for the injury.

You would think that this imperative would produce a regime directed to that purpose, but if you did you would be wrong.

Sure, in law a wrongdoer is liable to pay compensation, but Ireland is not anxious to ensure that that happens. If it were it would have introduced a system currently to be found in the United Kingdom. There, an injured person can enter an agreement with a lawyer to pay an enhanced fee for legal services, conditional on the claim being successful [“Conditional Fee Agreement”]. The defendant will then be liable for that fee in the event of success. In short, the UK recognizes that poor claimants are at a disadvantage relative to rich claimants, in legal proceedings.

This is an inherent feature of the previous UK position [and the current Irish one] where everybody is assumed to be a prosperous gentleman [probably Victorian] who pays his lawyer’s bills on a weekly or monthly basis and expects to recover those expenditures from any wrongdoer when he is successful in his claim that his lawyer prosecutes.

That assumed position is unreal. Such prosperous gentlemen are few and far between. Everybody knows this and yet, in Ireland, nothing is done to remedy the situation.

In fact, the opposite has happened. The government established the Personal Injuries Assessment Board [“PIAB”] to assist defendants. No claimant’s lawyer’s fees are payable by the respondent in the PIAB system. PIAB itself assures claimants that they do not need a lawyer to represent them, a claim at once untrue and an insult.

Any intelligent PIAB claimant must engage a lawyer at his or her own expense without any chance of making the defendant wrongdoer assume responsibility for that expense despite the fact that the defendant caused the expense to be accrued.

On top of all of that, in Ireland it is illegal for a lawyer to advertise that he or she will act for a claimant on the basis that the claimant will not have to pay legal fees if the claim is unsuccessful.

All in all, these provisions and arrangements are in direct opposition to the objectives of the Irish Constitution.

The issue is this; at what point and in what circumstances will an alleged injured person (injured in body, property or reputation) be prevented from maintaining legal proceedings, for redress, due to delay in bringing the proceedings? All common law jurisdictions have a system for preventing the bringing of stale claims.

For lawyers, this is dangerous territory. If a lawyer makes a mistake about this issue (by failing to issue proceedings in time, say) it may, by definition, be impossible to rectify the mistake. The consequence of this error will be the loss to the plaintiff client of a chance to litigate the claim in court. The claim will be statute-barred. However, a new claim will then arise; the claim against the lawyer, for the error.

This is bad for the lawyer, but also for the plaintiff. Such a claim, for professional negligence, will not necessarily be as good as the original claim. It is, of course, undesirable from the point of view of the lawyer.

The current law in Ireland fixes different periods of time for the bringing of actions, depending on the nature of the claim (the legal basis for the claim). In addition, the law contains exceptions to the general rule or rules. (The principal exception is that for infants and “persons under a disability”.) Then there are the exceptions to the exceptions. Of course, there is the uncertainty as to who is a person “under a disability”.

The foregoing is enough to show why the territory is dangerous; it is strewn with “landmines” and it is easy to step on them. The Irish Law Reform Commission shares this opinion.

We see this in Griffin v Calally [2008] IEHC. Time was running in that case, the defendant said, having assured the plaintiff that it, the defendant, would not deny liability.

Cautious lawyers would, in these circumstances, adopt the attitude of Nathan Bedford Forrest; “… git there fust with the most men”.

This is in contradiction to current notions of “mediation” and “conciliation”. They are fine ideas, but in their proper place; postponed until after the issue of proceedings.

There are, it seems, legal chicanes; if a law fails to get mentioned (or is mentioned) it falls. It is no longer law.

What of the Public Health (Ireland) Act of 1878 ((41 & 42 Vict.) c. 52)? It was recited in the First Schedule of the Statute Law Revision Act 2007 and was, consequently, retained as law in Ireland.

Previously. Section 54 of the Public Health (Ireland) Act 1878 was repealed by Section 6 of the Waste Management Act 1996 and the Fifth Schedule of that Act.

Before that, Section 54 of the Public Health (Ireland) Act 1878 was specifically brought into force in the County Health District of Dublin by the provisions of S.I. No. 310/1970.

Consequently, Section 54 of the Public Health (Ireland) Act 1878 appears to be still in force in [South Dublin County], [Fingal County] and [Rathdown County]. (County Dublin, excluding the City of Dublin).

The Public Health (Ireland) Act 1878 was the enabling provision for the Dublin Corporation Bye Laws of June1899 referred to HERE.

What happened, then, to those Bye Laws on the repeal of Section 54 of the Public Health (Ireland) Act 1878 in 1996?

They were, in the absence of any saving provision, implicitly revoked.

What alternative provision did Dublin City Council introduce? It had that power under Section 37 of the Local Government Act 1994.

Here is what Section 54 of the Public Health (Ireland) Act 1878 says on the subject:

“54. [Where the [district council] do not themselves undertake or contract for The cleansing of footways and pavements adjoining any premises, the removal of house refuse from any premises, the cleansing of earthclosets, privies, ashpits, and cesspools belonging to any premises, [A district council] may also, and when required by order of the Local Government Board shall, make byelaws for the prevention of nuisances arising from snow, filth, dust, ashes, and rubbish, and for the regulation of the keeping of animals on any premises, or for the prevention of such keeping, so as to be [prejudicial to health].”

This legislation clearly states that the snow is a nuisance. It is a public nuisance if it is on the public pavement. If it is not cleared off by the adjoining occupier, it is being maintained by him/her. Consequently the occupier is answerable for injury sustained by passersby who fall on the snow.

It invites consideration of the need for tone in Requisitions or Rejoinders; something like; “So?” or “Is that so?”

Students of history might recall the phrase “… to lie like a Bulletin…”, in currency in France during Napoleon’s reign. It is not just in Bulletins that lies are propagated.

Not that Vendors commonly lie; to Purchasers or their solicitors or Vendors’ solicitors. No, indeed, but a sceptical tone is appropriate, nonetheless.

Not that a suitable tone would have availed the Defendant solicitor in Kelleher & Anor -v- O’Connor practicing as Don O’Connor & Company [2010] IEHC

Here, the Vendor’s reply to a request for evidence of registration as a restaurant was; “None available”. In fact the premises was registered. The solicitor’s failure to procure a correct reply was not a cause of the Plaintiffs’ difficulties, as the High Court found; it was in his failure to tell the Plaintiffs to make their own investigations of the premises and its suitability for use as a restaurant that he was failing.

For the legal profession, there is good news in this. It establishes that a solicitor should be paid, by a client, not for accepting instructions, but for giving advice.

Where the property market is flat, as now, the correct advice must be; wait.

Where did I leave my Invoice generator?

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”.

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.