The new personal injury guidelines, introduced in April 2021, replace the Book of Quantum, which was used to put a value on compensation awards to plaintiffs. These guidelines relate to general damages or a general award for pain and suffering to include continuing pain and suffering into the future. The courts will now identify the injury, or main injury in a multiple injuries case, and use the Guidelines to ascribe a value to such injury depending on which category of injury it belongs to, as set out in the guidelines. Awards have reduced in the last few years, but a recent High Court case Illustrates how the court can still award substantial damages while carefully adhering to the guidelines. The plaintiff, a Garda motorcyclist was thrown into the air, following a road accident, and suffered quite serious injuries to his left arm and wrist. He also had other serious injuries to his testicles, inner thighs, chest, and ribs. He had extensive surgery, was dependent on his wife for most tasks, and suffered mental distress. The plaintiff was quite industrious about attending physio sessions and rehabilitating himself, and made a slow recovery from his bone injuries, despite residual and permanent weakness in both limbs and a curtailment in his lifting abilities. He was also left with nasty scars after his surgery. The issue before the court was general damages and the judge said that this had to be done by reference to the Personal Injury Guidelines. The judge said his task was to identify the most serious injury and the bracket of damages to which that clearly belonged. His second task was to uplift or increase that award to compensate the plaintiff for pain and suffering arising from his lesser injuries. The judge stated that each injury, in a multiple injuries case, must be fairly assessed and have a value allocated. However, following that, the judge must step back from those individual injuries and their values to evaluate, in the round, the cumulative effect of all the injuries on the plaintiff and to adjust the final award to avoid under or overcompensation. An overlap of injuries must therefore be taken into account. The court noted the trauma of the accident and permanent scarring and disfigurement of his arms, together with some residual weakness that affected his job, and these should all be taken into account. The judge found his most severe injury was to his left arm and the court valued his main injury at the lower end of €55,000 to reflect the plaintiff’s marked recovery. In respect of his lesser injury, the right wrist, the court valued this at €42,000 thereby placing it between the moderate and serious categories of wrist injury. His other soft tissue injuries, and individual bruising of his chest and ribs were valued at €3,000. The total awards amounted to €100,000.  Finally, the judge looked at the discount factor where injuries may overlap and could be treated together. As both arms had been injured, he applied a modest discount of €15,000 and therefore awarded general damages of €85,000 to the plaintiff. Keogh v Byrne [ 2024] IEHC 19. ce.

The courts do not approve of delays by either the plaintiff or defendant in progressing their case through the court system. In cases of chronic delays, the court will often be amenable to striking out the action because any prolonged delays are considered prejudicial to the plaintiff or defendant as the case maybe. The courts will not also shrink from criticising any legal firms who are themselves responsible for serious delays in progressing their client’s case. However, the client of the firm can be criticised too, if they are seen to have done little or nothing to address the failings of the firm they retained. This happened in a recent case before the Court of Appeal. The plaintiff issued proceedings in 2015, but these had to be amended as the wrong defendant was nominated. The defendant insurance company issued a request for further information but this was completely ignored by the plaintiff’s solicitors. The plaintiff changed her solicitors in 2022, but the new firm disclosed that no expert medical report had been obtained by her former solicitors between 2015 and 2021, when the matter first came to court by way of motion to dismiss her claim. The High Court held that the lack of a medical report after a period of eight years was unfair to the defendants, and it struck out the case as there was a risk that a fair trial was no longer possible. The plaintiff appealed to the Court of Appeal on the grounds that the defendant had never complained that it was prejudiced by the delays and, even if it was, that was insufficient to throw out her case. The appeal court found it unbelievable that, after eight years, the plaintiff’s solicitors had yet to obtain an expert medical report. The judge commented that running the proceedings for eight years with no underlying report was most certainly an abuse of process. The judge was also critical that the new firm had also been slow in progressing the file. He said that the plaintiff cannot avoid responsibility for the actions of her solicitors by landing the consequences on the defendant. The act of a solicitor is the act of the client who retains the solicitor, and the client must be held equally culpable for the shortcomings of the firm she employed. The judge concluded that prolonging the proceedings for eight years, without a supporting expert opinion, was a gross abuse of process and, in itself, was clearly prejudicial to the defendant. He therefore dismissed the appeal, and the plaintiff’s court case remained struck out. O’Neill V Birthistle [ 2024] IECA 17

A case brought to a French court could have implications in Ireland for the payment of royalties for music played at funerals. Music played at public events is collected by collection agencies. In France two of these took a French funeral company to court for the non-payment of royalties due to music composers for music played at funerals they conducted. The French court ordered OGF which is one of France’s largest funeral companies to pay €80,000 to the Society of Authors, Composers and Music Publishers (SACEM) and also €37,500 to another copyright association after a long dispute over the issue. The French company, OGF had in fact paid artists’ royalties until 2019 where they paid €1.93 per ceremony but after a price hike to €3.30 they refused to pay. The company also started a court case against the collection societies claiming that the funerals are private events and not broadcast to the public. The French court ruled ‘the broadcast by the company of musical works during funerals, without prior authorization…constitutes an unauthorized representation of these works and, therefore an infringement of copyright.’ In Ireland, the Irish Music Rights Organisation (IMRO) collects royalties on behalf of artists and music copyright owners. Currently, royalties are not collected by IMRO for music played at funeral services but perhaps they might decide to collect these royalties and follow the example in France.

A lady who worked for a nursing home took an action in the Circuit Court for an injury she incurred while operating a dishwasher. She claimed that the dishwasher was faulty and that she developed a repetitive strain injury from loading and unloading the dishwasher. Her job was specifically dishwashing duties at a private nursing home in Blackrock, Co. Dublin. She claimed that the machine she had to use was defective and required extra physical strength to load and unload the dishes. This had resulted in her developing a repetitive strain injury to the left side of her body. She claimed that in September 2017, she developed pain symptoms in her neck, ribcage, and groin for which she had to take painkiller and anti-inflammatory medication. She further claimed that three months later her back had ‘given up’ to the extent that she was no longer able to do her job. She attended a medical specialist who diagnosed soft tissue strain. This injury has affected her life, and she can no longer enjoy her pursuits of the gym, cycling and hill walking. The parties reached a settlement of €60,000 which was approved of by the judge. As she left her employment a few weeks after incurring the injury there was no claim for loss of earnings. The defendant nursing home had entered a full defence and made the settlement without admission of liability. Curry v Nursing and Caring Services Ltd Circuit Court (His Hon. Judge Meehan) 14 February 2024.

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The landlord of the Barrow Valley Retail Park had two leases with its anchor tenant, Dunnes Stores. In each of the two leases there was a restrictive covenant from the landlord in favour of Dunnes Stores which was binding on every lease the landlord entered into within the retail park. These covenants, in effect, prevented any shop from selling any goods that Dunnes Stores sold in their anchor store. In November 2020, the manager of the Dunnes Stores visited shop unit No. 4 trading under the Mr. Price name and found an array of products for sale which he considered to be ‘food, food products and groceries’ contrary to the restrictive covenants that each of the Retail Park lessees had signed up to. In the initial High Court case, Dunnes Stores applied for an injunction. The injunction was sought to prevent the shop occupying Unit 4 from selling products in breach of the covenants and the court granted the injunction. The appellants had claimed that the enforcement of the restrictive covenants would damage their trade to the extent that they would not have a viable business in the shopping center. The High Court judge found no evidence to support this. This decision was appealed to the Appeal Court. The Appeal Court pointed out that the restrictive covenants in the leases were not of a general nature nor vague but in fact, listed out the products which were the subject matter of the covenants. The Court of Appeal dismissed the appeal though it allowed the appeal on a lesser matter where there would be a declaration in the covenant to include the wording ‘provided that such items are non-durable’ for the sake of clarity. As the appeal was dismissed in most parts, the court ordered that 90% of the costs be awarded to Dunnes Stores. Dunnes Stores Unlimited Company & Anor v. Dafora Unlimited & Others [2024] IECA 37.

It’s important before buying an apartment to investigate how well the complex is run and how much of a contingency fund is in place to pay for repairs to the roof or other areas requiring maintenance. It is doubly important these days to make these enquiries, or more usually for your solicitor to make them on your behalf, as many apartment complexes have in recent years been bedevilled by shortcomings in fire safety provisions which cost a substantial amount to put right. The problem arose due to builders cutting corners and simply not complying with fire safety protocols at the time these complexes were being constructed and this despite a Fire Safety Certificate being issued. The local authority signed off on the Fire Certificate application / drawings, but the build was not carried out in accordance with the drawings / specification filed with the authority. In many cases the Guarantees may have expired, or the developer become insolvent, and all the costs of repair are left with the individual owners of the apartments. Your solicitor will advise you to engage an architect or surveyor to inspect the apartment and complex but as all work is covered over at this stage, it is usually impossible to find any fire safety problems.  So, any purchaser of an older apartment these days should be aware of these fire issues and will be advised by his solicitor: To ask an adjoining owner if there are any current fire safety or remedial issues. To engage an architect or surveyor to inspect the apartment and, if necessary, to liaise with the local authority or fire officer as to any concerns Whether or not the management company has adequate bank reserves to deal with any such fire or other emergencies Most importantly, when replies to the pre- contract queries are received, to advise whether the vendor/ management company are aware of any concerns or issues regarding fire safety / defective workmanship which could lead to a demand for payment from the management reserve funds. An inadequate reserve fund or a non-committal response to pre-contract queries is a red flag and any purchaser should be prepared to walk away in such a case and will be so advised by his solicitor.

FAMILY LAW: A Divorce Decree Does Not Prohibit the Parties from Continuing to Live Together If They Have Little Other Choice

If involved in a bicycle accident, which may result in litigation, there are several actions that you can take that will greatly assist. The common injuries to cyclists are: (i) Head and facial injuries. (ii) Dental injuries (iii) bone fractures (iv) soft tissue injuries (v) cuts, bruises, and scarring. The latter might be permanent. Cause of Accident Establishing this is important as the cause may not necessarily be the other road user in which case the cyclist has no claim. However, if others were injured or property damaged, the cyclist might well be the person sued. Accidents between two cyclists are not uncommon. Similar to accidents between motor vehicles, it is important to obtain both the contact information of the other party or parties as well as details of their bike or car. Taking pictures is especially useful. Take pictures of the road scene, road markings, the positions of the bike and other vehicle involved. Make a note of the ground conditions (i.e. wet or dry). Note the time of the accident and whether there was good light. It is always useful to report the accident to An Garda Siochana, even if it is a minor accident, as a record of it is important. So, if it is a minor accident, the gardai may not attend so when reporting the accident give them your notes. If the accident is serious and is attended by the gardai, the garda will take statements from those involved and from any witnesses. As soon as possible have your medical condition examined. For accidents where the parties are not taken to hospital, it is important that you visit your GP as soon as possible. Tell them the details of the accident and any injury or pain you are experiencing which can be traced back to the accident. Preparing Litigation Your solicitor will need all the records on the accident, so that will be: (i) your record of it (ii) your GP or hospital record (iii) photographs you will have taken at the accident scene iv Any garda report if available. Make sure if you receive a hospital report that it contains the name of the doctor who examined you on the day of the accident. Expenses incurred. All expenses you incurred arising from the accident should be given to your solicitor so make sure you have all these in receipts, as only documented expenses can be recovered. These can include cost of GP visits, medication, any medical cost directly arising from the accident and reasonable transport costs. Damage or loss of bike. Included in your claim will be the cost of bike replacement if, because of the accident, it is beyond repair. However, if it is repairable then this is a legitimate cost. Loss of Earnings If you have had to take time off work or if self-employed and cannot work, then this will be included in your claim. Evidence will have to be shown of loss of earnings. Personal Injury This would be your main claim if injured by the accident. This involves actual injury caused by the accident, pain and suffering and long term affects from the injuries. This will be established by the records kept at the scene of the accident and receipts evidencing all medical procedures, operations, physiotherapy, walking aids, after care requirements etc. Time Limits This is important. Delay could deny your action. Legislation called The Statute of Limitations requires personal injury actions to be taken within two years of the date of the accident. There are a few exceptions to this rule, e.g. for children, the limitation period does not start until the child reaches the age of 18. Early Action Thanks Contact your solicitor at an early stage if you decide to sue for personal injuries arising from a bicycle accident.