Negligence

Modern people, sportsmen/women excepted, are most at risk of serious injury when travelling on the road. The energy bundled in a motor car, or other vehicle, is considerable. If that energy is suddenly blocked, which is what happens in a typical car accident, it must go somewhere and, unfortunately, it sometimes goes into us. Then you are injured and the nature and extent of that injury is determined by chance.

Make no mistake; as a society, we have planned these accidents. Otherwise we would prohibit such forms of travel. Instead, we build lots of roads and we promote the use and sale of motor cars.

In this sense, it is a misnomer, to call these events “accidents”.

Take a circus, or theatre, knife-thrower.  If the knife thrower “accidentally” throws the knife and stabs his (typically) lovely assistant in the heart, we expect that the police will arrest him and that he will be convicted of a crime. We reject the idea that this is an accident. His implied position, that his only fault lies in that last unintended lapse in his wrist, is rejected.

We know that he arranged everything and we are reasonable in considering that, perhaps, or even probably, he had no lapse whatever in his wrist and intended the injury/death.

It is, among other things, this knowledge of a social responsibility for road traffic accidents that we see expressed in the fact of a Government “4^th Road Safety Strategy” or that the EU is holding a “Road Transport Safety Conference on Serious Injuries” in Dublin.

It is a fact, and we should know it, that, as a society, we can suffer mental aberration on these matters. (“Mental aberration” is a polite term for madness).

I do not just mean politicians’ proposals for Irish farmers to be permitted to drink and drive.

I do not just mean politicians claiming that workers allegedly neglecting road safety be allowed to get on with the job and be freed from “red tape”.

I mean it is a form of mental illness, hypocrisy certainly, to plan for injuries to happen and to claim, in the Constitution, that the State will vindicate the person (meaning bodily integrity) of citizens (and others) and then to establish a statutory body (the Injuries Board, a.k.a., the Personal Injuries Assessment Board) (and maintain it) that seeks to ensure the lowest possible level of success in delivering compensation to those injured persons, and to go further; to shrink the window of opportunity for the injured person to effectively make a claim for that compensation to the inadequate time of two years.

In fact, to term all of this “madness” is politeness.

We should remember that we were not always as “mad” as we currently are. We have a “legal system” that includes a cohort of persons intent on overcoming the State’s lunacy.When it comes to car accidents solicitors (and barristers) are those working for the common good. The persons who intentionally hobbled them in doing what they try to do, namely, vindicate the bodily integrity of road accident and other personal injury victims, cannot be categorised as mad. They are simply working against the common good.

The Injuries Board is also called the Personal Injuries Assessment Board. It was established by statute in 2003.

Every person wishing to recover compensation for a personal injury inflicted by wrongdoers must first apply to the Injuries Board for an assessment of the value of the claim.

The Board has issued an article today (26^th March 2013) and Patricia Byron, Chief Executive, went on Morning Ireland for an interview.

The upshot of the article and the interview is this; personal injury claims are increasing and this is bad.

This sounds like the resurrection of the jibe about “Compo Culture”. That jibe was the cry of persons who wished to deny to injured persons their rightful compensation when they were injured by the wrongful acts of others.

Those persons were successful in their campaigning because they had political friends in high places. The establishment of the Personal Injuries Assessment Board was one of their achievements.

Another was the shortening of the time within which an injured person had to issue proceedings before becoming statue barred from doing so. The time was shortened from three years to two years. (One politician wanted to drop it to one year).

Now the Injuries Board is asserting something is happening that it says is undesirable; that people are being educated to make claims for personal injury.

This is a surprising development. The Personal Injuries Assessment Board has a budget for advertising. Any reasonable person would think that it was part of the job of the Personal Injuries Assessment Board to educate injured persons to make claims for personal injury and to do so to the Board. Clearly, the Board does not think so. It fully approves of the restrictions on solicitors to advertise about personal injury claims. It wants that extended to others; it says those others are “claims agencies”.

Here are some facts:

1. PIAB are precluded from examining liability, but do get information on the facts of accidents. if those facts are not credible or reliable, PIAB can decline assessment;
2. In addition, respondents can and do decline assessment of false claims;
3. Consequently, piab assessments are of valid claims;

What public official can claim to be reasonable when decrying a claimed increase in PIAB claims? These claimants have been injured and want and deserve compensation.

The explanation is this; PIAB is biased against injured claimants.

1. It wishes to leave those persons in ignorance of their rights. (Patricia Byron; RTE’s “Morning Ireland” – 26/3/2013). Ms. Byron specifically complained in that interview that “the thought is being put in their mind”.
2. PIAB charges claimants for an assessment, but can, and does, relieve respondents (wrongdoers) of their obligation to pay, or even to submit to the PIAB system, before making an assessment (or, as should happen, giving the claimant an authorisation to go to court). (See Section 14 (b) of The Personal Injuries Assessment Board Act 2003).

One in three accidents at work occurs in connection with “manual handling”.

Employers owe a legal duty of care to their employees. The duty of care includes taking reasonable steps to ensure the health and safety of employees and to avoid accidents at work. The precise terms of the duty of care may be found in the law of negligence or it may be found in a statute, as a precise legal rule.

In the case of the obligation to avoid injury through manual handling, a duty of care is found in the law of negligence and in the provisions of The Safety, Health and Welfare at Work (General Application) Regulations 2007.

Manual handling includes lifting, pushing, pulling or turning weights or objects. It includes doing these things to people. Nurses are at considerable risk of injury from this cause.

See the advice on the topic from the Health and Safety Authority HERE.

In principle, an employer is obliged to provide mechanical equipment to execute manual handling operations. Manual handling by the worker personally is to be avoided where possible. Of course, the injury may not be to the back; it may affect the arm or shoulder or legs.

The risks in manual handling are known; they arise from loads that are too heavy; too large; difficult to grasp; unbalanced or unstable; difficult to reach, or of a shape or size that obscures the worker’s view.

With very little bother or trouble, the Oireachtas could and should remedy a real and persistent injustice for many injured persons.

In Hu -v- Duleek Formwork Ltd & Anor [2013 IEHC 50,  the High Court declined to make a declaration that the Plaintiff was entitled to the benefit of an insurance contract taken out by the insolvent Defendant company. The insurance company, Aviva, took issue with the Defendant’s failure to pay the excess of €1,000 which, as between the Defendant and Aviva, it was the Defendant’s liability to pay in respect of the Plaintiff’s claim.

Aviva would not be able to do this in the UK.

Mr Hu was injured due to the Defendant’s negligence and, it seems, breach of duty. The Defendant had paid a premium to Aviva and insured itself against claims such as that of Mr. Hu. It would have got its indemnity entitlement if it had not been insolvent. Its insolvency prevented it paying the excess. Mr. Hu offered to pay the excess but Aviva would have none of that. Consequently Mr. Hu is left without compensation for his serious personal injury and Aviva have escaped paying him because there is no person to make them do it.

More than 80 years ago the UK decided that exactly these instances of  the doctrine of privity of contract, which doctrine was in essence the basis of the Irish High court decision, were indefensible and insupportable in such circumstances. Recently the UK law was updated.

All we Irish have to do is to copy what the UK has done.

The past is still here. 80 years is no excuse for perpetrating injustice; it is an inexcusable injustice. Laziness and indifference are human faults not explanations.

Supermarkets are common locations of slips and falls. The customer numbers are high and the material to cause the slips is readily to hand.

Under the Occupiers Liability Act 1995 an occupier is obliged to take;

 “… such care as is reasonable in all the circumstances…….to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon”

There is a danger in supermarkets that stuff will fall to the floor and customers will slip on it.

The circumstances will vary between one part of the supermarket and another. If a tin of beans falls to the floor, it is unlikely a customer will step on it or fall having stepped on it. However, if vegetables or fruit fall to the floor the customer will surely fall if she steps on it. So, the care to be taken is greater in the area of the vegetables (or containers of oil, for instance).

Ireland does not like to collect information. If it does collect information, it does not like to release it to the public. Until the introduction of the Safety Health and Welfare at Work Act 1989, statistics on work accidents were completely unreliable. Many such accidents had been defined out of existence and were not searched for or recorded. The State set up a commission, the Barrington Commission, to review the facts on accidents at work, in the lead up to the introduction of the 1989 Act.

Things are now improved. Work accidents are monitored, to a degree, by the mis-named Health and Safety Authority.

It is mis-named because it deals almost exclusively with accidents at work, happening to workers. It has no remit to collect data on accidents and/or injuries generally.

For that kind of information we have to look to the USA. See HERE for the US National Safety Council’s report for 2008. On page 29 it recites:

“Falls are the leading cause of nonfatal unintentional injuries that are treated in hospital emergency departments, according to data from the All Injury Program…..More than 8.5 million people were treated in an emergency department for fall-related injuries in 2008. Falls were the leading cause of nonfatal injuries for all age groups except for the 15-24 year old age group, for which struck by or against an object or person was the leading cause. Struck by or against, overexertion, and motor vehicle crashes involving vehicle occupants were also leading causes for most age groups.”

This is surprising; falls injury more people than road accidents. (Possibly not; see page 37 of the US report) What does this mean for retailers?

Perhaps it is time to examine an idea (that a fall in a supermarket should trigger an obligation on the occupier to prove it happened in the absence of fault on the part of the occupier ) similar to one floated in the Irish Supreme Court; (Mullen v Quinnsworth Ltd, t/a Crazy Prices (No 1)[1990] 1 IR59 (raising the possibility of imposing “absolute” liability on the proprietors of large supermarkets on an analogy with the rule in Rylands v Fletcher)

We are rightly worried about our beef burgers. The supposed international criminal conspiracy undermining the meat industry is easily located; it is the meat industry. But the meat industry is not unique.

Consider our bread. We have been suspicious about it for a long time. When white bread was invented or introduced it was popular with the rich; they felt more confident that they were not eating bread contaminated with mouse droppings or insects or their body parts. (Bleached excrement and beetle parts are OK?)

Then the rich became suspicious about white bread. It was of lower nutritional value. Indeed, all mass produced bread is of lesser value than homemade or artisan made bread.

These issues are sub-sets of a larger issue: we inhabit one environment, much of it engineered. Lots of things can go wrong and if one does many people will be affected.

The general legal principle (the law of negligence) means that the person or persons who engineer the environment will be answerable for the consequences when things go wrong (central bankers and politicians, generally, excepted).

We have tried to make some of those “engineers” more readily answerable for the hazards of parts of that environment.

Employers come to mind.

See HERE  for the advice from the UK Health and Safety Executive to employers about safeguarding employees (and others, partially) from infectious agents.

Some of the “engineers” are builders and we have recent reason to think about walls and the building of them. In Cowan v GAA and McInerney & Son Ltd. [1991] 1 IR 389 the court heard that the plaintiff, a spectator, was injured when part of a wall collapsed on him at Croke Park in 1985. The part of the wall not collapsed had dowels or rods in it; the collapsed part did not. The court inferred that the specification for the wall required rods in every part and therefore the second defendant was liable. The first defendant was also liable because it should have reviewed the safety of its premises with a general structural examination following two notable disasters in foreign public stadia in 1985

We are a firm of lawyers. Our website should deal with legal subjects. Hopefully, we do not lapse from that rule and, without going to the trouble of conducting an audit, we think we do not.

It’s a broad rule and allows us to write (polemically if necessary) about such diverse topics as road accidents,  accidents at work,  medical negligence,  planning act infringements and fingerprints.

We could, if necessary, even comment on Bilbo Baggins’ contract with the dwarves at the beginning of The Hobbit. (1)

Now this, we think, gives us a practical turn of mind. Admittedly, it is difficult to know what that means and I think its meaning varies from situation to situation, but it probably means that we expect to reach for and grasp finality, or, as they say in the USA, we expect to reach closure (for our client).

That militates against interest in reviews of the current state of the law but certainly does not exclude it; we read or write them if we need to do so, but they are not our reading of choice. (2)

It is possible that a certain interest we express, in probabilities, springs from this utilitarian approach. Sometimes this appears so clearly our client notices it; one such litigious client bought us a crystal ball because we had lamented (too often) we lacked one. (3)

Being practical also means being discreet. At the beginning of the US civil war in 1861, the newspapers published the Federal army’s plans for forthcoming movements, having got the information from the army’s generals. Undoubtedly, the sales of newspapers increased substantially in Richmond VA. We try to avoid equivalent mistakes.

We also know the difference between discreet and discrete, (otherwise we would be incomprehensible) and we try to avoid being that. In the same vein we distinguish our inferences  from perceived implications and we deplore the use of “presently” to mean “currently”.

We hope we can understand an opponent even, or particularly, where we disagree with him. Take the National Newspapers of Ireland, for example.  It is this writer’s contention that the NNI position on its claimed property rights in internet links may be an old and sad error; a failure to know and use the subjunctive  in writing or speech.

Be that as it may (4), such an error can end in trying to defend the indefensible and what lawyer, at least, wants to end there?

What is the subjunctive? It is one of the three moods of English verbs: the indicative, the imperative and the subjunctive. The subjunctive conveys ambivalence and uncertainty. (5)

NNI cannot deny the uncertainty of its position on links; it asked the Copyright Commission to remove the perceived (by NNI) uncertainty.

So, the original position of NNI was this:

“Were we to possess a property right in internet linking to our websites we would charge our notified rates”

Unfortunately if your journalists, particularly your editors, are unfamiliar with the subjunctive you will retreat to the indicative  or even the imperative: now you have rubbed everybody up the wrong way.

1. Bilbo lacked legal advice. Surely he was more like a consumer than a professional burglar, as Gandalf had described his role? Nowadays if you go white water rafting, say, the organisers must ensure that you will come through the experience unharmed.
2. This brings CPD (continuous professional development) to mind. We do our CPD quota of hours every year, and more besides. Otherwise, professionally, we are toast.
3. In due course, when the shop in which he bought it went out of business we lamented to him how unforeseeable it was (not least for the shop) that that would happen!
4. The subjunctive!
5. When Phillip of Macedon sent a message to the Spartans – “You are advised to submit without further delay, for if I bring my army into your land, I will destroy your farms, slay your people, and raze your city.”, they replied; “If.” 

When the Food Safety Authority of Ireland tested a range of Irish frozen beef burgers, purchased from Irish and British supermarkets, it found evidence that they contained horse meat and/or pig meat.

It found that the source of the offending meat was the respective manufacturer of the beef burger. In the case of Silvercrest Foods Ltd. almost 30% of one burger constituted horse meat.

These facts were sufficient evidence to prosecute the various manufacturers (and the retailers).

Prosecutions are necessary because of the overriding objective of securing the safety of consumer food in the EU. If you are a manufacturer it is easy to ensure the safety of the food produced in your factory; you make sure that your sources are safe.If you fail to do this you should be prosecuted.

Under EU law Ireland is obliged to prosecute for breaches of EU law and the known facts were evidence of breaches of EU law and Irish law. The person responsible for ensuring there are prosecutions is the Minister for Agriculture and Food. That means there will be no prosecutions because he has shown he does not agree with the law.

He thinks that negligence is insufficient to get a conviction or even to bring a prosecution. He implies that proving knowing and deliberate adulteration of food is what is required to bring a prosecution and get a conviction but this is not and should not, be the case.

His is the latest in a long line of Irish failures. Ireland is an extreme example of a noted problem; regulatory capture. When a regulated industry (such as banking) exerts sufficient influence, its regulator becomes its champion and defender instead of its regulator.

Here we go again.

Our Ref: EMcG            Your Ref;                                    8^th October 2012

Alan Shatter TD

Minister for Justice and Law Reform

St. Stephen’s Green

Dublin 2

Re: Legal Services Regulation Bill 2011

Dear Minister,

I am writing this open letter to you about one element of your proposed legislation, the Legal Services Regulation Bill 2011. That element is the errors in the Bill, relating to legal costs.

What is wrong with your Bill, relating to legal costs? Well, it correctly assumes that some reform is needed in the area. Ever since early Victorian times, a solicitor has had obstacles put in his/her way to recover legal costs. You already know of those obstacles. Allied to that, the calculation of legal costs has been rendered so abstruse that even an expert like yourself has fallen foul of the rules applying to their calculation. See the judgment of the High Court in Gallagher, Shatter v De Valera (1983) HERE.

I do not think that your expertise has been improved with the passage of time since that judgment. You were wrong then and you are wrong now, for different reasons.

So, what IS wrong with your Bill?

1.   Litigation is expensive. Nothing in your Bill will change that. Of course, your Bill may reduce legal costs from a category of “very expensive” to “expensive”, but it will not make those costs “affordable”.

2.   Worse than that, the Bill ignores reality. It assumes that, in every litigation case, the solicitor’s client pays his or her legal costs. You and I know that that is not the norm.

3.   In Ireland, and the UK, the judiciary, generally, follow a practice of awarding costs of the action to the victor.

4.   This is a two edged sword. It makes litigation a very risky business; the costs, if you lose, are high. On the other hand, it encourages certain forms of litigation. It encourages victims of abuse of power to challenge their abuse. I am not just referring to abuse of power by office holders like yourself; I include abuses by people who have more money than the victim. It is easy to dominate people who lack the resources to fight back, particularly in a society like ours where, rightly, we insist that disputes are to be settled only in a court system and not by direct action.

5.   Encouragement is not sufficient to deliver justice; for that, a victim also needs help from a lawyer or lawyers. If that help is not forthcoming the encouragement is a disservice. The victim might become a litigant without representation (a “lay litigant”). (There are more and more lay litigants appearing in the court system nowadays. They represent a serious problem for the courts, not least because a case with such a litigant takes much longer than otherwise).

6.   A litigant, without representation by a lawyer, is gambling on winning and is increasing the chances of losing. At the same time the litigant is likely to suffer very high levels of stress.

7.   Your Bill, overall, is likely to increase the number of lay litigants.

8.   That fact alone is an indictment of you. It should be your primary duty to deliver justice to the citizens and residents of Ireland. The place where they get that justice is in court and you should facilitate that court justice. The major problem in this area is a lack of proper civil legal aid. A lay litigant is not a match for an opponent with legal representation. In short, the court system cannot run correctly without lawyers.

9.   You and your predecessors have had your work done for you by Ireland’s lawyers. By “work”, I mean discharging your primary duty. Because the courts will award costs to successful plaintiffs Ireland’s lawyers consistently act for indigent plaintiffs who are victims of abuse of power. The plaintiffs are the clients of the lawyers, but they are clients who, generally, do not pay their own lawyer. Those lawyers assess and filter the injustices in our society and advance claims in court for people who otherwise would suffer injustice without redress. This “system” is inefficient. Practising lawyers cannot undermine their livelihood by taking all such cases on a “deferred fees” basis. They inevitably select those with the best chance of success. (They are the “marginal” cases beloved of economists.)

10.   Your Bill fails to acknowledge this. Worse, it pretends that no such activity takes place. It pretends that you are the defender of those plaintiffs as they “pay” for those legal services.

11.   The State has established, nominally, a system of civil legal aid. In practice that delivers, very slowly, legal services only to indigent family law litigants. Nobody knows this better than you; your livelihood, as a lawyer, has been derived from family law litigation representing persons who do not qualify for legal aid.

12.   Who, then are the beneficiaries of your Bill’s provisions relating to legal costs? The litigants who lose are the beneficiaries.

13.   Who are the litigants who lose? Ironically, lay litigants are, generally, losers, but the big losers are the companies in Ireland’s insurance industry, and, on occasion, the State. These are the most litigious parties in Ireland’s court system. It is inevitable, particularly in the case of the insurance companies, that they will lose. They are contractually obliged to indemnify their customers when claims are made against the customers. They, generally, cannot decline indemnity just because the customers’ actions are or were egregious and inflicted loss, injury and damage on innocent plaintiffs.

14.   So, they should settle those claims. But they do not. At least, they do not settle enough of them. There are reasons for this, but this is not the moment to canvass those, disparate, reasons.

15.   There is one reason worth mentioning; sometimes the insurance company or even its insured, calculate that the victim plaintiff is vulnerable to pressure. The available pressure to apply is the stress generated by litigation. Litigation and its oppressive costs are weapons in the contest between plaintiffs and defendants.

16.   Your Bill is a contribution to that contest. You have weighed in on the side of the defendants and, consequently, will drive more injured  victims beyond the “margin”.

Yours faithfully,

McGarr Solicitors

Heat

Overheating or inadequate heating of the body are two aspects of the same problem. The body maintains a deep body temperature of about 36 – 39° C. The system for maintaining the equilibrium of body temperature is called the homeostatic mechanism. It is remarkably effective and over a period of one day, irrespective of the variations in temperature in the surroundings, the body temperature will remain very stable.

It is possible to throw a strain on the homeostatic mechanism, resulting in its breakdown. To understand how this happens, it is necessary to look at how the mechanism works. Its operation is a function of the interaction of;

• Metabolism ;

• Evaporation ;

• Convection ;

• Conduction ;

• Radiation ;

• Storage ;

Metabolic heat is generated by the digestive activity of the body, producing energy from food and, in fuelling the physical activity of the body, more heat is generated from the movement and exercise of the muscles in the course of that physical activity.

Perspiration is produced in the course of strenuous physical activity, thus wetting the skin. Wet skin gives off heat to the air much more efficiently than dry skin, which is the reason we feel chilly on stepping out of a shower and is also the reason we like to run in and out of the sea on a hot summer’s day. The loss of heat through perspiration is called evaporation.

The effectiveness of evaporation will depend on the temperature of the air immediately adjacent to our skin. If the transfer of heat to that air from the body raises its temperature relative to the rest of the body of air, of which it forms part, the heated air will rise or otherwise move, and be replaced by cooler air. This air movement is called convection.

Convection will not function in conditions where the temperature of the air is generally higher than the body.

The body can lose heat directly into solid or liquid surfaces in immediate contact with the body. This is known as conduction.

Radiation is analogous to metabolic heat in that it is a source of heat and increased temperature to the body as opposed to reducing agents like convection, conduction and evaporation. Radiation may have other effects than raising the deep body temperature and these will be referred to later.

Lastly, the body has a capacity to store heat and retain it. Body fat is particularly important in this regard. When it was in fashion, female swimmers of the English Channel tended to be chubby women, a valuable attribute when long periods immersed in cold water are in prospect.

The interaction of all these factors determines the deep body heat of the human person. Of course the need for clothing is clear. Clothing is used around the world to maintain proper body temperature. In the deserts of the Middle East and North Africa the people wear long loose fitting gowns. These protect against the radiant heat of the sun and permit access of air flows to the body to facilitate convection. In Ireland we rely on cosy clothing to protect against cold.

The Symptoms of  Heat Exposure

In the case of a temperature rise, sweating and dilation of the peripheral blood vessels, resulting in skin reddening and more rapid transportation of excess heat to the skin, through the blood circulation system, will occur. Thirst will be experienced with loss of fluid. If the temperature rise continues the worker may feel weak or dizzy.

The Effects of Heat Exposure

Efficiency of workers will begin to fall. Levels of confusion will increase accompanied by an increase in mistakes  in the work in hand. Any of these mistakes can result in injury to the worker or his/her companions or members of the public. Loss of time off work can be reasonably anticipated.

Heat cramps will very likely ensue caused by a loss of salt through perspiration. Continued lack of attention to the problem can lead to heat collapse . There are variations of tolerance between individuals but heat collapse will ensue in more than two thirds of cases where body heat reaches 40-43° C. The worker will abruptly lapse into a coma. He/she will require immediate hospitalisation and immediate attempts to lower the body temperature. If the worker is to survive, his/her deep body temperature must be reduced to at least 40° C.

Radiant heat, apart from raising deep body temperature will damage skin, with skin reddening as the symptom, resulting in soreness and dryness. Cataracts may form in the eyes leading to permanent loss of function.

Dermatitis can arise due to excess temperature or humidity.

People at Risk

Workers at or in foundries or other hot working conditions generally are at obvious risk. Laundry workers  can be exposed to considerable temperatures although without the element of radiant heat from the hot metal of a foundry.

Protection

Shielding of the worker from radiant heat is an obvious remedy to be adopted. Protective clothing may suffice for this purpose although the eyes will need a face mask or goggles. Frequent periods of rest from physical effort will assist the worker in keeping down the generation of metabolic heat. Retreat from the source of the heat and exposure to cooler air will assist in heat reduction through convection. A supply of salt drink will replace the salt lost in perspiration and avoid the onset of heat cramps. Proper organisation of work with planned lowered work rates or lowered periods of work are a necessary step to be taken by the employer.