There is an argument to be made that the broad statement in the blog post “Slip and Fall” acknowledging impunity for public authorities for non-feasance is wrong.

Under the European Convention on Human Rights, persons have the following rights;

Article 8: The right to respect for home (private and family life)
Article 2: the Right to life;
The First Protocol, Article 1: the right to protection of property.

Under the European Convention on Human Rights Act 2003, the Courts are obliged to interpret Irish law to conform with the Convention.

In Guerra v Italy (1998) 26 EHRR 357, toxic emissions from a factory injured many nearby residents and killed some. The ECtHR found that the absence of information on the effects of living near the factory breached the Applicants’ right to respect for home under Article 8 of the Convention.

Consequently, where a failure by public authority would result in a breach of an Article of the Convention, it would be incumbent on the authority to act and the authority would be liable in those circumstances for any failure to so act.

Many people have been injured in Ireland on public pavements due to the recent snow and ice. Public pavements are “public” because they have been “taken in charge” by the local authority. (If they are not taken in charge they are private pavements.)

It is settled law in Ireland that a public authority is not liable for damage arising from “non-feasance”. This means that, if the public authority fails to exercise a statutory power, and loss is sustained which would have been avoided if the power had been exercised, the public authority is not accountable in law for that failure.

(This does not mean that public authorities are not liable for all failures. They are liable to the same extent as ordinary persons for failure to act; that means that a Plaintiff must prove a duty of care resting on the public authority and loss arising from breach of the duty or care.)

Consequently, a failure by a local, or other, authority to clear snow and ice from roads or footpaths, generally, is an act of non-feasance and attracts no legal liability.

Private persons (adjoining owners and occupiers) have, generally, no liability in common law to clear public roads or pavements of snow and ice. They may have a particular liability; if they place the snow or ice on the road or pavement, or create it in the first place. These acts would constitute a public nuisance. For instance, if the owner or occupier transfers a snow burden from his premises onto the public pavement, the presence of the snow is not “natural”. It is man-made. The owner or occupier had created the condition. For further instance, if the owner or occupier pours hot water on the pavement to melt ice already there, and the water freezes, the new ice will have been created by the owner or occupier.

If the servants or agents of a public authority create a public nuisance, the authority will be liable on the general principles of nuisance.

In the City of Dublin a particular liability rests on owners and occupiers (including local and public authorities) adjoining public pavements to clear the pavement of snow immediately on the cessation of the snowfall. The liability was created by bye-laws of June1899. The bye-laws do not expressly create an entitlement to compensation for persons injured on such un-cleared pavements, but the courts have consistently interpreted such statutory obligations as creating and conferring such entitlement.

The liability for private roads and pavements will be covered by either or both of contractual duties, if any, and the Occupiers Liability Act 1995.

Legal proceedings claiming compensation for personal injury (including injuries due to medical negligence) must commence within two years of the commencement of the running of time against the injured person.

When does time begin running?

It depends on the facts of the case.

The Irish Medical Council has published Guidelines to doctors that they may be convicted of medical malpractice if they are not open to the patient or the family of the patient in the event of error.

This is good. It is good for two reasons; firstly, the Council’s ruling (although not entirely selfless) will allow injured persons to access legal advice promptly after an error (and retrieve evidence before it is lost).

Secondly, the situation referred to in this earlier post of McGarr Solicitors can be avoided. The situation was one where, due to the deceit of a doctor, the Statute of Limitations did not begin to run against a patient until she could find out about the injury and the full, true, circumstances in which it was inflicted.

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.

As part of the assault on the constitutional rights of personal injury victims, the Minister for Justice etc. procured the making of a requirement, of such victims, that they write a letter to the person guilty of inflicting the injury within two months of that infliction. That requirement is found in Section 8 of the Civil Liability and Courts Act 2004.

A failure to write the letter within the time may lead to the victim failing to recover legal costs against the wrongdoer, depending on what the judge in the case thinks.

Lawyers have a good word to describe such a provision; that word is “calculated”. The provision is calculated to have considerable downside for the innocent victim, even if it is never put to the test.

Who will feel sufficiently brave to fight to the last ditch, knowing that the letter was not written and that the judge is an unknown quantity?

In short the victim’s morale will be sapped.

That was what the Minister intended.

If a person suffers a personal injury while in the premises of another person, it is necessary to analyse the circumstances of the accident from the point of view of the law of negligence and also the Irish law on occupiers’ liability.

(If the injured person is an employee, it will be necessary also to consider what employer duties might have been broken, resulting in the injury).

The law on occupiers’ liability applies when the injury is caused by a defect or some condition of the premises. If the injury occurs without involving the premises, occupiers’ liability does not arise.

The greater part of the law on occupiers’ liability is now to be found in the Occupiers’ Liability Act 1995.

It is a highly technical piece of legislation.

Consider the definition of “premises”:

“premises” includes land, water and any fixed or moveable structures thereon and also includes vessels, vehicles, trains, aircraft and other means of transport;”

So, a motor car or a bicycle is a “premises”.

Or, consider what is a “recreational user”:

“recreational user” means an entrant who, with or without the occupier’s permission or at the occupier’s implied invitation, is present on premises without a charge (other than a reasonable charge in respect of the cost of providing vehicle parking facilities) being imposed for the purpose of engaging in a recreational activity…”

What for instance is the cost of providing car parking in a particular location? If a “recreational user” is alleged to be such, having paid a car parking charge, should the occupier prove that the charge was “reasonable” (relative to the “cost” of providing parking)?

(Why the reference to the “greater part of the law on occupiers’ liability” above?

Because of Section 8 of the Occupiers’ Liability Act 1995;

“8.—Nothing in this Act shall be construed as affecting any enactment or any rule of law relating to—

( a ) self-defence, the defence of others or the defence of property,

( b ) any liability imposed on an occupier as a member of a particular class of persons including the following classes of persons:

(i) persons by virtue of a contract for the hire of, or for the carriage for reward of persons or property in, any vessel, vehicle, train, aircraft or other means of transport;

(ii) persons by virtue of a contract of bailment; and

(iii) employers in respect of their duties towards their employees, or

( c ) any liability imposed on an occupier for a tort committed by another person in circumstances where the duty imposed on the occupier is of such a nature that its performance may not be delegated to another person.”

Chemicals can be Corrosive, Explosive, Toxic, Flammable, http://en.wikipedia.org/wiki/Flammable Combustible or Oxidizing. A corrosive chemical can burn the skin or deeper tissue. A toxic chemical is a poison. The poison may enter the body through the skin and not simply by the obvious routes of ingestion or breathing. Effects may not be immediate; a chemical may have a chronic effect, rather than an immediate acute effect.

A chemical is said to be flammable if it will burn or explode at temperatures lower than 140 degrees fahrenheit. Some substances can reach this phase below room temperature.

A chemical is said to be combustible if it will burn or explode at temperatures above 140 degrees fahrenheit.

A chemical is said to be oxidizing if it reacts with oxygen and other substances, resulting in a release of energy in the form of a fire or an explosion.

It is a source of additional worry (above the prospect of unemployment) to employees who have been injured at work, to find that their employer is insolvent.

The reason for that lies in the fact that, in Ireland, only a party (the employer) to employers’ liability insurance may sue an insurance company for an indemnity in respect of a claim made against the employer.

In addition, in the general law of insurance, any money paid to the insolvent employer by the insurance company would become the property of the insolvent company and would be swallowed up in the insolvency.

To avoid this, the Oireachtas legislated in Section 62 of the Civil Liability Act 1961;

62.—Where a person (hereinafter referred to as the insured) who has effected a policy of insurance in respect of liability or a wrong, if an individual, becomes a bankrupt or dies or, of a corporate body, is wound up or, if a partnership or other incorporated association, is dissolved, moneys payable to the insured under the policy shall be applicable only to discharging on full all valid claims against the insured in respect of which those moneys are payable, and no part of those moneys shall be assets of the insured or applicable to the payment of the debts (other than those claims) of the insured in the bankruptcy or in the administration of the estate of the insured or in the winding-up or dissolution, and no such claim shall be provable in the bankruptcy, administration, winding-up or dissolution.”

As a consequence of the Section a liquidator holds the money in trust for the insured employee and should pay it directly to the employee in the appropriate circumstances.

With regard to the tort of negligence, road traffic accidents are exceptional. They are exceptional because they conceal the fact that, often, the factual cause of an event is not discovered. Even where there is no witness to the immediate event of the road traffic accident, it is regularly possible to infer from the circumstances what happened and the knowledge, experience and skill required to do this is not uncommon.

In other fields of human activity this knowledge is not so easily accessed.

Occasionally, even in road traffic accident cases it is seen how important it is to be able to explain the factual cause of an event. In Counihan v Bus Atha Cliath – Dublin Bus [2005] IEHC 51, the Plaintiffs, pedestrians, were injured when a bus crashed into them. The driver had suffered a blackout. He had no basis for anticipating such an event, from his medical history. Thus, on those facts there was no negligence on the part of the Defendant and the Plaintiffs’ claim failed.

In May 2008 the Supreme Court affirmed a decision of the High Court as to the applicability of the Personal Injuries Assessment Board Act 2003 (“the 2003 Act�?) to actions against the Motor Insurers’ Bureau of Ireland (“MIBI�?).

Under the 2003 Act an injured person is obliged to apply to the Personal Injuries Assessment Board (“PIAB�?) for an assessment and, if necessary, a certificate, before issuing proceedings in court for the recovery of compensation.

Where the person has been injured by an uninsured driver or by a driver whose identity is unknown, the injured person may claim against the MIBI. The Bureau is, effectively, funded by all the insurers of motorists, in the Irish market.

The obligation to prove liability and loss remain, even though the MIBI is not “at fault�?.

The MIBI was not mentioned specifically in the 2003 Act, hence the doubt. The judgment makes sense; anything else would have been an anomaly. Indeed, in a very real sense the 2003 Act was intended to apply to the MIBI more than anyone or anything else; they are the insurance industry.

The 2003 Act is intended to benefit them.