Injury Compensation News

Ms Justice Elizabeth Dunne has made an important ruling in the High Court regarding the definition of “date of knowledge” for medical negligence claims and hospital negligence claims. The 1957 Statute of Limitations Act has been updated to reduce the time from “date of knowedge” to making injury claims to two years (rules are different for child injury claims).
However, Ms Justice Dunne ruled that an individual may be aware of an injury but not be aware that it was caused by negligence. Specifically, Justice Dunne said that in the case of Edward Naessens that it was “very difficult to accept” that the victim had the necessary medical expertise to decide if a recurrence of a tumour was due to medical negligence.
In this particular case, the victim Edward Naessens had an operation in February 1994 for an adenoid cystic carcinoma (removing a cancer tumour) but was told that no further treatment was required apart from six-montly reviews. He was told in 1996 that additional pain was due to scar tissue and nerve damage. It was only after a recurrence in 2000, after which he received comprehensive post-operation care in St. James’ Hospital, that Naessens realised that he had not received the same level of care previously. Specifically, it was claimed that after his first operation, Neassens should have received additional radiation treatment and a CT scan when he complained of pain, in addition to being advised about the high risk of a recurrence of cancer.
The defendants were the CEO and a consultant surgeon at St. Vincent’s Hospital, who had requested that the court rule that the case was statute barred.
The decision now means that not all medical negligence claims are automatically subject to the two year Statute of Limitations rule.  It also confirms that judges do indeed have full discretion regarding interpretation of the rules in the interest of serving justice when there are special circumstances.

Joan Noone has been awarded €42,000 in damages against the Setanta House Hotel, Celbridge, County Kildare, after her reception was disrupted by a collapsed ceiling. Luckily there were no serious injuries.

Ms. Noone from Maynooth, County Kildare, was very upset by the incident and cancelled her honeymoon. She was in shock for some days after the accident and claimed she suffered post traumatic stress afterwards.

The case was heard by Mr Justice Iarfhlaith O’Neill, who assessed for damages as the hotel admitted liability.
The groom, Michael Noone, and five wedding guests, are also due to have compensation cases heard soon. It is not known how many of the 129 wedding guests have started compensation proceedings against the hotel.

Three siblings of a 14-year-old girl, Jennifer Hoban, who died of injuries resulting from being struck by a bus, have accepted an undisclosed settlement from Dublin Bus.

Jennifer Hoban was struck by a bus while crossing Killinarden Way in Tallaght on November 5th, 1997 and died shortly afterward from her injuries.   Her two brothers and sister, who are now adults, suffered prolonged grief following the accident.   A case was taken against Dublin Bus through the children’s father, Thomas Hoban, for compensation damages for psychiatric injury.

Dublin Bus made the settlement without admitting liability.

The Road Traffic Bill 2009 that arrives in Seanad Eireann this week after passing unopposed in the Dáil last week will improve road safety in Ireland by reducing road traffic accident deaths while also having an important impact on road traffic accident injury compensation claims. The Road Safety Authority has ample statistics on drunk driving that show that alcohol contributes to one third of all fatal traffic accidents in Ireland.  A driver at the current limit of 80 mg of alcohol per 100 mls of blood is six times more likely to have an accident than a sober driver.

Minister Dempsey has pursued his campaign to save lives despite what has been described as ‘huge pressure”.  The improved safety measures were, somewhat incredibly, strongly opposed by a group of rural TDs who pointed out that rural pubs are often the centre of social life in rural areas where there is no public transport.  The Vintners’ Federation of Ireland opposed the new measures and pointed out that speeding was the biggest single cause of road deaths in Ireland.
The blood  alcohol limit for learner and professional drivers, such as taxi drivers, has been reduced to 20 mg of alcohol per 100 mls of blood. The best new feature of the new law is that drivers will now be tested for alcohol in traffic accidents when anyone has been injured.

New Rules will Impact Injury Compensation Process
The circumstances of road traffic accident injury claims will now often be somewhat clearer because the gardai will test drivers for alcohol.  Regardless of the circumstances of an accident, a driver found to have consumed alcohol will very likely be held negligent. Drivers under the influence of alcohol are never in full control of their vehicles and even their statements about the circumstances of an accident cannot be fully relied upon.  Even the victim of a rear end car accident that is found to have consumed alcohol will be guilty of contributory negligence.
If you are ever involved in a road traffic accident, do not hesitate to inform any gardai present of potential injuries so that they will conduct alcohol tests on all parties in the accident.  Your solicitor will use evidence of alcohol consumption while negotiating any injury compensation settlement.

More improvements are still required:

• There may be a temporary shortage of  roadside breathalysers as the new measures are rolled out and some drunk drivers may avoid testing because the new bill states that the mandatory testing must be done within one hour.
• The lack of a driving ban for drivers caught with between 50 mg and 100 mg seriously undermines the new measures.
• There is still no mandatory requirement for alcohol tests where someone has not been injured.  Such a requirement would further help discourage drink driving.
• There is still no drug driving testing measures, despite the fact that workplace drug testing is now a standard procedure for many occupations and has been in place for decades in the United States.

Garreth Quinn of Clondalkin, County Dublin, has been awarded €25,000 in the Circuit Civil Court yesterday for a needle injury sustained on a bus seat. The incident happened in February 2005 when Quinn sat down on the 78A at the Liffey Valley Shopping Centre terminus, sustaining a needle injury to his leg from a syringe.  The bus driver immediately called an ambulance, which brought him to a hospital. Although tests on the syringe did not find any contamination, it was still deemed prudent to undergo blood tests and inoculations.  It took 3 years before it could be guaranteed that Quinn was not infected with hepatitis B or hepatitis C.

The bus accident claim was taken against Dublin Bus.  Judge Joseph Mathews found that visual inspections by Dublin Dub staff were not sufficient and that crevices in seats on buses should be probed for needles and syringes.  The injury compensation award consisted of €15,000 for suffering to date and €10,000 for future suffering.

Dermot Moylan of Mallow, County Cork, had a settlement of €4.25m settlement approved at the High Court by Mr Justice Iarfhlaith O’Neill for birth injuries.

Moylan suffered severe brain damage after he was deprived of oxygen at birth and suffers from epilepsy and cerebral palsy and he will need care and support for the rest of his life.

The case was taken against Southern Health Board,  Erinville Hospital,  Dr David Jenkins, and Dr John McKiernan.

The settlement was made without any admission of liability.

The family of Maria Verdida, a nurse aged 52 at the time of her death in October 2003, has received €575,000 following an road traffic accident involving a bus.
The case for wrongful death was taken by the husband of the deceased nurse, Resituto Verdida, who has since moved back to the Philippines, against Dublin Bus and the bus driver. The defendants admitted full liability for the accident and the only question to be decided was the amount of compensation.
The bus driver, Frank Turner of Crumlin, Dublin, was driving at a safe speed but was temporarily blinded by strong sunlight and failed to react in time when the light at a pedestrian crossing changed to amber.  Mr Turner admitted fault in the accident and apologised to the family of Mrs Verdida. He was sentenced to a six-month suspended sentence, fined €500,  and banned from driving for four years.
The bus was not carrying any passengers – which would surely have resulted in claims for mental stress had they witnessed the very unfortunate accident.

There have been many stories over the past few weeks in Irish newspapers about the deaths of children in state care.

The stories have been confusing, not least by the fact that factual information was simply not available when the story broke.  The Sunday Business Post was the first newspaper to focus on the story and produced estimates of as high as 200 deaths over the past 10 years. These numbers are based on extrapolating recent confirmed figures.  After multiple efforts to produce accurate information, the government finally released a figure of 188 deaths.

Opposition politicians have repeatedly used the word ‘negligence’ and Eamon Gilmore has blamed the “dysfunctionality in the HSE”.  The current budget for child and family services is €536 million, which is clearly a huge sum of money and points to management problems rather than lack of resources.  Indeed, the government has announced a new senior position within the HSE to help prioritise spending.

Did the authorities, especially the HSE,  have a duty of care for children that are placed in their care?

Clearly the answer is yes.

Is the HSE responsible for all of these deaths?

Certainly not.  Many of the teenagers were clearly troubled and short of placing them in prison, there was very little the state could do to prevent them from leaving their state-provided homes.

Is the HSE responsible for some of these deaths?

The Minister for Health Mary Harney clearly blames the HSE. The minister has recently written to the Board of the HSE to point out that the HSE is in breach of numerous statutory duties in relation to foster care services.  A copy of this letter would be very useful evidence in an case brought against the HSE.  At the very least, there’s probably a lot of cases where the HSE is guilty of contributory negligence.

The report of the Commission to Inquire into Child Abuse, known as the Ryan report, has already identified all the key measures required to reduce or prevent child abuse and neglect. The measured outlined by Justice Seán Ryan include providing a uniform approach to dealing with child protection; greater emphasis on preventive measures and family support; and ensuring all children in care are assigned a social worker and personalised care plan.

Do you or a family member have a negligence claim against the HSE?

Every single case will be different. The only way to determine if you have a case is to talk to a solicitor.

The Catholic Church in Ireland has reached yet another out-of-court settlement with a child abuse victim. Compensation of over €250,000 was  paid to Marie McCormac, who was abused while a child by Fr. Bendan Smyth between 1970 and 1975.

McCormac sued Cardinal Seán Brady, the diocese of Kilmore, and the Norbertine Order.  The settlement was made without admission of liability but did include an apology.  It’s somewhat strange that liability was denied while compensation and an apology were offered.

In this particular case, it is alleged that the Catholic Church did not report allegations to the Gardaí and conducted an internal investigation that included swearing witnesses to secrecy.

The actions of a very tiny minority of priests and the subsequent response of some of the church leadership damages the reputation of the entire Catholic Church in Ireland, regardless of the fact that its overall contribution to Irish society is overwhelmingly positive through countless acts of charity helping the less fortunate in society.

U2 bassist Adam Clayton has launched a High Court case against Gaby Smyth alleging professional negligence.  Smyth is usually described as U2′s ‘financial controller’ or even the group’s financial ‘mastermind’.
The papers lodged in the High Court in Dublin on June 4th are for a plenary summons for alleged ‘negligence’  The papers also name two accountants employed by Smyth in Gaby Smyth & Co., Jill Percival and Pat Cleary.  Bank of Ireland Private Finance is also named in the lawsuit.
It will be Clayton’s second case in the High Court this year, after succeeding in January to get the assets of his former housekeeper Carol Hawkins frozen for allegedly defrauding him of €1.8 million.
The details of the professional negligence claims against Gaby Smyth & Co. are not yet full known. It is not yet clear if there are any professional negligence claims related to the allegations concerning Carol Hawkins.  It is known that the negligence claim is related to investments and professional advice.
Clayton has retained the services of the law firm Gleeson McGrath Baldwin.