Author Archives: Edward McGarr
In 2010, there were 79,287 cases of occupational injury or illness. A little less than half of these were not reportable to the Health & Safety Authority.
It has been known for a very long time that some occupations imply risk and cause injury to workers.
Some of this may be attributable to the imperfections in medical knowledge but mostly it is a failure to think with clarity. There is room for improvement on the part of the medical profession in ascribing causes to illness and death, which do not, in effect, do more than describe symptoms rather than pinpoint causes.
What does not go out of date is an underlying feature of employment; the incidence of injury in work and its relationship with occupation and, therefore, social class.
That means that injuries from food poisoning, or road accidents caused by the negligence of drivers or mechanics are all suitable to be litigated under the 1995 Act, conditional on those services causing the injury being part of the “obligations under the contract”.
Medical negligence is a serious problem in Ireland. It needs to be treated in a serious manner.
Prior to 2004, for not less than fifty years, plaintiffs were not required to give any further details on the issue of proceedings. The plaintiff was, however, obliged to give the details to the defendant before the trial. It was, (and still is), in the plaintiff’s interest to find out those details and to communicate them to the defendant. Only when the defendant knows these things can the defendant readily agree to settle the claim. Settlement is the best outcome of personal injury litigation; there are insufficient judges to adjudicate on all or most claims for personal injury.
Legal practitioners have a solution to that; plead every conceivable item of loss and, later, waive those that do not apply. Section 10 prevents this; it requires that “full” particulars be pleaded. This implies that the plaintiff cannot issue proceedings until all these losses are accrued and known, or, as mentioned, that items not pleaded cannot later be claimed.
Litigation needs an engine; that is, something must drive the process forwards. For a personal injury victim that engine is, normally, the persistent fact of the injury. From the medical point of view this will imply difficulty coming up with a prognosis. A prognosis is a doctor’s estimate of the progress (or lack of it) expected of the patient.
To be useful, on issuing the proceedings, it is essential that the Statute of Limitations period not have expired. That period, for personal injury, is two years, measured from the date of the cause of action. Generally, there is no difficulty ascertaining the date of the accrual of the cause of action. For a road accident victim, say, it is the date of the accident.