In Byrne v Hudson [2007] IESC the Plaintiff lost his eye when an adult son of the owners of 84 Windmill Rd. Crumlin in Dublin shot him with a paint ball gun from the upstairs window of that house.
The Plaintiff instructed his solicitor. However, the Plaintiff failed to tell the solicitor of certain circumstances actually known to him. Those circumstances were that the father of the adult son no longer lived at 84 Windmill Rd. and that the occupier was the mother. (The adult son also did not live at the address.)
Consequently, when the solicitor issued proceedings, the adult son and the father were named as the defendants, the latter as the occupier of the premises. As he was not the occupier, the action was bound to fail against him. Much later the Plaintiff joined the mother. She pleaded the Statute of Limitations 1957, as amended. The Plaintiff pleaded the Statute of Limitations (Amendment) Act 1991 in reply. Under this amending act time does not begin to run until a victim knows or with reasonable inquiry can know the identity of the person who has wronged him or her.
The mother claimed that the time within which the Plaintiff could effectively and successfully issue proceedings against her had long since expired. The Supreme Court agreed with her. It found that the Plaintiff could not avail of the provisions of the Statute of Limitations (Amendment) Act 1991 in circumstances where not only could he easily find out the relevant facts (that the mother was the only occupier) but that he actually knew this when he instructed his solicitor (and failed to tell him).
(What was at issue, [it is surmised], was the probable availability of insurance cover for the Plaintiff’s claim. That cover was to benefit the occupier and not anyone else. The adult son was not welcome in the house; he would not have been an insured person. The father was not an occupier; he would not have had cover. Only the mother as occupier would have been covered. She was the proper and preferred defendant.)
(Currently, an injured person has two years to issue proceedings and to stop time running against him or her. Only if the Statute of Limitations (Amendment) Act 1991 applies, will that time not start running at the accrual of the cause of action (the date of the injury)).
It is unwise to make a quick judgment on whether time has run against a claim or not. This post should not be relied upon to determine that question in any case. See the post “Disclaimer!” in this blog.

In legal circles the significance of making a wrong statement looms large. We saw this in the case of Willie O’Dea. Willie’s case is a double example; he straddled the legal world and the political world with his error. In the legal world the political world is often looked on with a cold eye, for good reason. In politics “denial” is not, it seems, evidence of a character flaw; it can be a skill, measured by the duration of the deferral of the time one is called to account.

Denial is only incidentally the subject of this post; conveying wrong information is its subject.

We are all of us guilty, at some time or other, of doing this. We have firm clear recollections of where we left the keys, the hand blender, the tea-bags, the car insurance etc. We were wrong. Nevertheless, we conveyed (even propagated) the wrong information to someone else. Errors of this kind are common. Significantly, being wrong is not evidence of wrongdoing.

There are occasions when being wrong is evidence of wrongdoing, but these occasions are not common. Even sworn evidence in court, if not accepted by the court, does not lead to a charge of perjury. Generally, we do not infer dishonesty from the error in the statement. It is tempting to say that the more elaborate the statement, the more it is evidence of a malign intent if it is wrong, but this is not true, as we saw in the case of Hilary Clinton.

Perjury aside, the law has been anxious to distinguish between wrong statements that cause personal injury and wrong statements that cause economic loss. (Most wrong statements cause neither).

We see in the case of Walsh v Jones Lang Lasalle [2007] IEHC 28 an instance of what statements and what circumstances will trigger liability for economic loss in Irish law.

In 2000 the plaintiff purchased 77 Upper Gardiner Street in Dublin for the sum of IR £2,342,000.00 for investment purposes. He dealt with the defendant firm, acting for the vendor and the defendant told him (in its sales brochure) that the property comprised a floor area of 23,057 square feet. In fact the floor area of the property was 21,248 square feet, (1,817 square feet less than what was represented to the plaintiff by the defendant).

The defendant’s brochure contained a disclaimer of liability for wrong statements in the brochure in the following terms;

“Whilst every care has been taken in the preparation of these particulars, and they are believed to be correct, they are not warranted and intending purchasers/lessees should satisfy themselves as to the correctness of the information given.”

The High Court found for the plaintiff as follows; (a) the relationship between the plaintiff and the defendant was sufficiently proximate to give rise to a “special relationship” of the kind identified in Wildgust and, (b) that the loss allegedly sustained by the plaintiff was reasonably foreseeable in the circumstances and, (c) that the imposition upon the defendant of such a duty was, in the circumstances not unfair, unjust or unreasonable. The court was satisfied on the facts of the case that the defendant owed a duty of care to the plaintiff to ensure that the calculation of the floor area of the property that the defendant published in its sales brochure was accurate.

In the absence of evidence of purchasers commissioning surveys to check the accuracy of precise measurements contained in the brochures of reputable auctioneers, the court refused to find the plaintiff guilty of contributory negligence in failing to check the defendant’s measurements.

Auditors are “watchdogs, not bloodhounds” said the court in Re Kingston Cotton Mill Co. (No. 2) [1896] 2 Ch 279 CA. Even at the time this was a very limited view of what we can expect of auditors or their like. (It was also infelicitous; auditors are not and never were, even metaphorically, like “watchdogs”). Considering that Sherlock Holmes was an available “example” (1880 to 1907), it is surprising the judge did not feel more could be expected of the auditors of his day than he settled for.

The job of an auditor is to ascertain if the accounts provide “a true and fair view” of the company’s financial position. However, the auditor’s judgment on this is not, and should not be, absolute. After all, the auditor should not be the equivalent of an insurer where he pays if there is something wrong and loss accrues. In modern times the profession, as always, determines the liability of auditors. The profession has issued guidelines for auditors. Those guidelines now impose a higher standard on auditors than Re Kingston.

These guidelines were quoted in Moore Stephens (a firm) v Stone & Rolls Limited (in liquidation) [2009] UKHL 39

”Auditing Standard SAS 110 (issued January 1995) deals with fraud and error. It contains statements of auditing standards (SAS) and explanatory text in numbered paragraphs. SAS 110.1 states: “Auditors should plan and perform their audit procedures and evaluate and report the results thereof, recognising that fraud or error may materially affect the financial statements”. SAS 110.10 (para. 50) states that, on becoming aware of a suspected or actual instance of fraud, auditors
“should (a) consider whether the matter may be one that ought to be reported to a proper authority in the public interest; and where this is the case (b) except in the circumstances covered in SAS 110.12, discuss the matter with the board of directors, including any audit committee”.
SAS 110.12 (para. 52) provides that
“When a suspected or actual instance of fraud casts doubt on the integrity of the directors auditors should make a report direct to a proper authority in the public interest without delay and without informing the directors in advance.” “

The fact that the auditors in that case escaped by the skin of their teeth shows life is going to get difficult for the profession.

The Personal Injuries Assessment Board (“PIAB”) has published a book showing the level of damages the Board will recommend for various injuries.

The book is incomplete. We see this from the case of Kenny v Cowley [2006] IESC 37.

In this case the Plaintiff had a defective left eye before the accident (for which accident the defendant was liable). His right eye was injured in the accident and his vision in it was much reduced. The Supreme court judge writing the consensus judgment noted that the PIAB book did not deal with the loss of an eye. (In fact, the plaintiff’s claim was not simply for the loss of an eye; it was for the loss of his only useful eye).

The Supreme Court decided the award of €90,000 by the High Court for the injury was too low. It increased the award to €120,000.

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.

ENDORSEMENT OF CLAIM

1. The Plaintiff’s claim is for the reliefs recited herein for personal injuries suffered by the Plaintiff.

2. The first Defendant resides at . The second Defendant resides at .

WRONG ALLEGED AGAINST THE DEFENDANTS

3. At all material times the first Defendant was the driver of a motor vehicle, the property of the second Defendant, in which the Plaintiff was traveling as a passenger and which collided with a third party vehicle causing severe personal injury loss and damage to the Plaintiff.

PARTICULARS OF CIRCUMSTANCES RELATING TO THE COMMISSION OF THE WRONG

4. On or about the 1st December 2009 the Plaintiff was lawfully a passenger in a motor vehicle driven by the first Defendant on the public highway at Dame St. in the City of Dublin, when owing to the negligence and breach of duty including breach of statutory duty of the Defendants their servants or agents or either of them in and about the driving, management, care, control and upkeep of a motor vehicle then being driven by the first Defendant and being the property of the second Defendant, same was caused or permitted to collide with a third party vehicle in consequence whereof the Plaintiff suffered severe personal injury and suffered loss damage and expense.

5. The Defendants their servants or agents or either of them were guilty of negligence and in breach of statutory duty in that they or either of them:

a) Drove too fast;
b) Drove without due care and attention;
c) Failed to keep a proper or adequate lookout;
d) Collided with the said third party vehicle;
e) Failed to have any or any adequate regard for the prevailing road conditions;
f) Failed to stop slow down swerve or in any other way so to manage the said vehicle so as to avoid the said collision;
g) Failed to have any regard to the presence and location of the third party vehicle on the highway and to yield the right of way to the said vehicle;
h) Failed to comply with the provisions of the Road Traffic (Traffic and Parking) Regulations of 1997 and Section 67 of the Roads Act of 1993.

PARTICULARS OF PERSONAL INJURY

6. The Plaintiff suffered severe injuries to his head, face, neck and legs as a result of the accident. He was taken by ambulance to the Mater Hospital and then transferred to Beaumont Hospital. He underwent nailing of his right femur and the screw was subsequently removed in December 2010. The Plaintiff remained in hospital in Beaumont for approximately 14 days. He was then transferred back to the Mater Hospital where he underwent further treatment, including physiotherapy.

The Plaintiff continues to suffer from ongoing pain in his right leg that restricts his lifestyle and employment prospects. The screws were removed from his leg and he has continued to suffer from ongoing muscle pain on the right side. The Plaintiff obtained employment as a storeman during the course of 2010 but it was necessary for him to give this up as a result of pain in his right thigh that was made worse by prolonged standing. It is the opinion of the Plaintiff’s experts that he sustained a concussive head injury of moderate severity. This injury is associated with psychological symptoms that have improved but have not recovered completely. As a result the Plaintiff continues to experience ongoing post-traumatic headache and neck pain.

The Plaintiff has a visible scar across his cheekbone and a scar on his chin. The Plaintiff also suffered dental damage as a result of the accident. It is expected that the Plaintiff’s cognitive impairment is likely to be permanent with no further improvement. It is the opinion of the Plaintiff’s expert that the Plaintiff’s capacity for future employment is more limited than it would have been if the injury had not been sustained. It is likely that the right femoral injury will limit his ability to obtain employment that requires walking long distances or prolonged standing. His cognitive impairment will make it more difficult for him to learn and remember the tasks of a new job. In the circumstances the Plaintiff will probably suffer loss of earnings into the future and will require vocational review.

Apart from the physical injuries the Plaintiff’s psychological symptoms included mood disturbances, suspected post-traumatic stress disorder and cognitive impairment. The Plaintiff continues to suffer from nightmares and flashbacks as a result of the accident. The Plaintiff had suffered an episode of depression in his early twenties but had no difficulties immediately before the accident. A final prognosis must be guarded. The injuries were severe and debilitating. They interfered with the Plaintiff’s enjoyment of life and all routine and other activities, particularly his playing of football, which he was accustomed to doing every Saturday before the accident. The onset of further sequelae cannot be ruled out.

RELIEFS CLAIMED

7. AND the Plaintiff therefore claims damages together with the costs of these proceedings and interest pursuant to the Courts Act 1981.

8. The proceedings herein have been authorised by the Personal Injuries Assessment Board, pursuant to Section 17 of the Personal Injuries Assessment Board Act 2003 by Authorisation No. XXXXXXXXXXXXXXXXX dated 1st September 2010.

SCHEDULE

PARTICULARS OF SPECIAL DAMAGE

Loss of earnings (continuing)
Medical expenses (continuing)
Chemists’ bills (continuing)
Travel (continuing)

Signed: ____________________________
McGarr Solicitors
Solicitors for the Plaintiff
12 City Gate
Lwr. Bridge St.
Dublin 8
Ph.: 01-6351580

This Summons was issued by the Plaintiff Joe Soap whose personal details are as follows:

1. The address at which the Plaintiff ordinarily resides is 10 Leafy Lane, Ballyfermot, Dublin 10
2. The Plaintiff’s occupation: Storeman

3. Plaintiff;s date or birth: 1/4/1979

4. Plaintiff’s PPI No. XXXXX

5. Plaintiff’s address for service is: McGarr Solicitors
Solicitors for the Plaintiff
12 City Gate
Lwr. Bridge St.
Dublin 8

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

The government seems to have a furnace somewhere to dispose of old banknotes, such is their fondness, to the point of habit, for burning public funds.

Why else does the taxpayer have to pay for a contaminated pork recall?

After all, we know with reasonable, if not perfect, certainty where the contaminated pork originated.

We appear to know that the output of that factory accounted for 10% of Irish pork in the retail market. That, in the judgment of the Government, justified the recall.

Why is the taxpayer the unwitting insurer of the farmers, the factory, the processors and the retailers?

Was the recall not, again, an incident of a market loss? Is there some large Irish Insurer whose policies cover this loss and whose business cannot be allowed to fail for unknown reasons?

Is there a peculiar and particular meaning to the phrase “a perfect market”, in Ireland?

Owners of property are generally aware of the need to take out insurance policies against loss or damage to the property. It is foolish to think, for instance, that if something falls from the sky onto a building, a viable claim in negligence will subsist against some person to pay for the damage caused to the building. Furthermore, as a practical matter, it is foolish to think that even if such a claim were to validly subsist, that that would be easily converted into the full recovery of that compensation.

See Dempsey & Anor -v- Waterford Corporation [2008] IEHC for a lesson on this. The Plaintiffs were owners of a premises in Waterford. One fine day their lovely parquet floor buckled under the effects of a leak of sewerage into the building and under the floor. The sewerage had come from an ancient culvert running under the building. That culvert in turn entered another culvert running down beneath the public street outside the Plaintiff’s building. Something down the end of the street culvert had caused it to become blocked and the sewerage had backed up into the Plaintiff’s premises.

The Defendant corporation had recently renewed the sewerage in the city. It had no knowledge of the culverts and did not connect them to the new system. The Plaintiff contended that this was negligence on the part of the corporation and/or it was nuisance. (The culverts were on no maps available to the corporation; the Plaintiffs, too, had not known of the culvert under their building).

The Court disagreed. It found no evidence of negligence and no evidence that the corporation caused the nuisance and, therefore, in the absence of negligence the nuisance claim also failed.