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Personal Injury – Hearing Loss Claims * for Noise

Hearing loss claims * illustrated by ear protectors image

The suppression of noise does not seem to be high on the agenda of modern industrial machinery designers. Unfortunately, worker victims of the noise find it all too easy to suffer easily-perceptible permanent hearing loss as a consequence. That is, irreversible damage can occur without the victim being aware of it. Dangerous noise can be sudden or prolonged. We have all found ourselves temporarily deafened by noise. Human hearing can deal with many such instances, if they are infrequent. Admittedly, some noises are so extreme that a single instance will cause permanent damage. While this is not the typical cause of hearing loss claims *, due to the way the ear functions, sudden or intermittent noises can be more harmful than continuous noise. (more…)

The Right to Silence

I received my copy of the Balance in the Criminal Law Review Group’s Interim Report but did not have an opportunity to read it before now. As I understand it, I received a copy because I made a submission, which is a civilized response, although tempered by the absence of an invitation to make more submissions. Nevertheless, I enjoyed reading the Interim Report.

It certainly carries an air of authority and no clearly visible axe to grind, as we might understandably perceive in the case of the Minister for Justice Equality and Law Reform (the Tanaiste) producing such a document. (more…)

Personal Injury – Repetitive Strain Injury

REPETITIVE STRAIN INJURY

See HERE for the Employer’s duties.

At least 120 people of a staff of 340 in the Financial Times reported possible Repetitive Strain Injury symptoms Over a two and a half year period. The injury is one of the most common of those listed in the reports of the Health and Safety Authority . The UK experience confirms this too.
The condition is also sometimes referred to as Occupation Overuse Syndrome. It involves inflammation of the muscles, tendons and nerves of some part of the body. The parts usually affected are the hand and upper limbs generally, but the foot or leg may also suffer. The Health and Safety Executive in the United Kingdom proposed a name change to “work related upper limb disorder” on the grounds that it does not always involve repetition or strain, or result in a visible injury. The condition is on the increase in Ireland.

As the name suggests the damage arises from the a particular pattern of use of certain muscles. This may be a repetitive use or constant load on the muscle. “Tennis elbow” is a classic example of such overuse. Any single movement of the limb may be within the capacity of the body but not when the movement is multiplied by a considerable factor. In short, quantitive demands may be made of the human body which it is unable to meet without suffering injury. It has been calculalated that assembly workers may repeat the same movement 25,000 times a day. The injury may be diagnosed as: Synovitis, Bursitis, Tenosynovitis, Tendinitis, Peritendinitis, Epicondylitis or even Carpal Tunnel Syndrome. Inflammation occurs in an attempt by the body to deal with a build up of waste products in the affected area. The accompanying swelling affects the nearby nerves and other tissue. Symptoms vary, ranging over one or more of: Pain, Tingling, Numbness, Swelling, Crepitus, Disability, Loss of function. If treated early, the pain is alleviated by eliminating the work causing the problem. If treatment is not commenced, the pain continues after work and any use of the limb cause pain. The swelling and numbness lead to a loss of function which can become permanent. The occupations at risk feature one or more of the following; frequent repetition of movement; forceful movement; fixed posture; fast work pace; excess work load; uneven work load; insufficient breaks; noise; draughts.
Workers affected include typists or VDU operators; assemblyworkers; sorters; production workers; machinists.

Implicated industries include; Electronics; Banking; Domestic appliance manufacture; Office work; Poultry packing and processing; Manual sewing in clothing and carpet manufacture; Biscuit manufacture; Cigarette manufacture; Sport goods manufacture; Building cleaning with heavy scrubbing or polishing machines.

“De-skilling” should be seen as likely to introduce conditions causing, or contributing to, the injury. Management proposals of this kind tend to be associated with lack of consultation. This indicates poor communication in both directions between management and workers. If the worker does not or cannot report symptoms to management the injury may become irreversible. For legal reasons, complaints should be promptly made to management even if they are ignored. The cost of the injury may be considerable, not only to the employee but to the employer; if it leads to the loss of occupation the earnings differential may be considerable. The British Inland Revenue settled the case of three computer data clerks for a total of £107,5006 As the compensation for personal injury in Britain is relatively low, most of this would have been loss of earnings.

Ramazzini noted the symptoms in his book “Treatise of the Diseases of Tradesmen” in 1705.

In modem times it has been well described since at least the beginning of the ’60s.

In Pepall & Ors. V Thorn Consumers Electronics Ltd. QBD 1985. Mr. J. Woolf said: “Where the defendants did fall down on the duty which they owed to their employees to exercise reasonable care for their safety in general, was because the steps which ought to have been taken to combat the risk of tenosynovitis required a relatively sophisticated programme of educating and warning employees…. The problems needed consideration and implementation bt management at a high level��?

Personal Injury – Employers’ Duties

Occupational Health and Safety

An employer owes duties to employees under Common Law and statute. The common law duties have been developed by the courts as they decide cases on accidents at work.
The employer’s Common Law duties are:
a) To provide a safe place of work
b) To provide proper tools and equipment
c) To provide a safe system of working
d) To provide competent staff

In addition an employer owes duties under statute to safeguard employees in the workplace.
Under the Safety, Health and Welfare at Work Act 2005, (“SHWWA”) (Section 8)) the employer’s duty is to ensure the safety of employees and in particular;

a) to provide by management and action, safety at work;
b) to provide by management and action that improper conduct does not occur;
c) to provide a safe place of work;
d) to provide safe plant or equipment;
e) to provide safe a safe system of work;
f) to provide safety information, instruction, training and supervision to employees;
g) to make a risk assessment and to implement measures to protect workers from those risks;
h) to provide protective clothing or equipment where hazards can not be completely eliminated;
i) to make emergency plans; and revise them as required;
j) a guard against hazards of particular articles or substances;
k) to provide welfare facilities and maintain them;
l) to provide a competent person to ensure safety and health at work of his employees.

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Locus Standi

We are, only now, making attempts to overturn a vicious prejudice. The High Court has permitted the Irish Penal Reform Trust ((Irish Penal Reform Trust v The Minister for Justice (2005) High Court (unreported))) to bring civil proceedings on behalf of, or for the benefit of, all prisoners who are mentally ill.

Solon of Athens, in 590 BC, established the same principle; that a third party could bring an action on behalf of a victim.

What happened in the interval, that we find ourselves re-inventing the wheel, so to speak?

MDU – More revelations

We have written elsewhere about the Medical Defence Union and the cover it may or may not give to a member in the event of a judgment against the member for professional negligence.

It appears in Australia, a professional is obliged to insure him or herself (ie, membership of something like MDU is not sufficient).

Furthermore, MDU is in a postion to offer insurance. In such a case it will be unable to deny indemnity on the basis of the ‘€œdiscretionary’? right it reserves in respect of members’ claims.

There is no justification for any scheme, other than a contract of insurance, for a profesisonal person, to reassure the public that their just claims will be met, unlike the situation shown here.

Cross Examination

There is an exception to every rule. I have a general rule, that everybody else’s criminal law cases are boring, whereas mine are not.

Here is the exception.

Digital Rights Ireland

THE HIGH COURT
2006 No. 3785P

 

Between

 

DIGITAL RIGHTS IRELAND LIMITED

Plaintiff

And

 

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

Defendants

At the request of the Defendants the Plaintiff has agreed to strike out the Motion to dismiss for default in serving a Defence and to an Order extending the time for so doing by 4 weeks. The costs of the Motion, by agreement, will be paid by the Defendants.

The Price of Coffee

The price of coffee has received some attention from economists but at the producers’ end it is not a question of economics; it is a political issue.
(Perhaps all economics is political). At the consumers’ end it is too insignificant to be a political issue and is of interest to economists because it resembles a case study from a textbook (one of theirs). There are more interesting issues.

Consider bribery. Here in Ireland it is a crime. ((on paper, but under reported)) In Kenya it can become a necessary way of life.

After all, what is an ordinary person to do in a society where an authoritative source can distinguish “… between the petty corruption of bribery among minor officials, grand corruption at senior ranks, and “looting” – scams of such a scale that they have macroeconomic impact”
One answer is; keep your head down. When the political pressure grows it may drive the looters to seek people of whom an example may be made. If this happens, hire a lawyer from a nearby jurisdiction (if possible). Even that may not be enough; anecdotal evidence ((gossip)) tells me of a case in India: the Plaintiff slipped the judge 5,000 currency. The judge read his judgment (recorded by a stenographer) in favour of the Defendant. As he looked down at the chagrined Plaintiff he raised five fingers and gestured towards the Plaintiff, then, raising ten figures, he gestured towards the Defendant and shrugged before leaving the bench.

Of course, everybody in the system will find they are paying bribes as well as receiving bribes. The Kenyan Bribery Index estimates that the payment of bribes accounts for one third of an ordinary person’s monthly income.

Transparency International defines corruption as “the misuse of entrusted power for private gain”. One Kenyan commentator refers to the formation of new networks in response to the focus on corruption.

The Ford Motor car cartel in Ireland was just such a network.
The existence of a network is an indication of potential corruption; the major actor, on any occasion, in the network may not be the major beneficiary (on the particular occasion; but what comes around goes around).

Why has the Government stalled on the Whistleblowers Bill since 1992?
Whatever chance we might have of getting information from within the networks if the Bill is enacted, we have none if the Government blocks it.

What does a network look like? Well, Teddy Roosevelt had some idea; he said “A man who never graduated from school might steal from a freight car. But a man who attends college and graduates as a lawyer might steal the whole railroad.”

Judge Moriarty is right to see Charles Haughey’s activities as the corruption of Irish democracy.

Fiat Justitia Ruat Caelum

The Bridewell, originally uploaded by Editor_Tupp.

 

1. The title phrase (Fiat Justitia Ruat Caelum: “let justice be done, though the heavens fall”). is incised in the stone above the entrance to the Bridewell police station in Chancery Street, behind the Four Courts. This has the appearance of an error; the District Court adjoins the police station (they are connected by an underground passageway to securely transfer prisoners from one to the other) and the phrase, logically, belongs on the court rather than the station.

2. The notion of bringing the powerful low and shaking the foundations of the State in the High Court, let alone in the District Court behind it, sits uneasily with the current State view of the modern law of Judicial Review as embodied in Order 84 of the Rules of the Superior Courts.

3. Judicial Review is a concept arising in “public law issues” or “proceedings”.

4. Order 84 of the Rules of the Superior Courts defines the Judicial Review procedure in the High Court. Under the rule and the case law, an applicant is obliged to move very fast and seek the assistance of the Court as soon as possible.

5. Consequently, where the applicant has not done so, the Respondent (the State) very often seeks to rely on delay to preclude the raising of “public law issues”. The ostensible basis for these submissions is the alleged overriding necessity for certainty and stability in the deployment of administrative decisions. The attack normally takes the form of a request for a trial of a preliminary issue on a point of law before the applicant is permitted to address the factual basis for his or her case.

6. Occasionally, where the applicant has been granted leave to take Judicial Review proceedings the Respondent has appealed the decision. The Supreme Court in Gordon v Director of Public Prosecutions (([2003] 1 ILRM 81)) settled the question of the burden of proof on such applications as being heavier than the burden already discharged by the Applicant, namely to make an arguable case; on an application to have leave set aside, the standard is to demonstrate that leave should never have been granted, “a negative proposition”

7. Delay has not always been seen as a relevant issue. In State (Furey) v. The Minister for Defence (([1988] ILRM 89)). McCarthy J, stated

“Further, I see no logical reason why delay, however long, should of itself disentitle the certiorari applicant for that remedy who can demonstrate that a public wrong has been done to him – that, for instance, a conviction was obtained without jurisdiction, or that, otherwise, the State has wronged him and that that wrong has continued to mar or mark his life”.

(more…)