Category: Claims

Toxic Chemical Exposure Claims at Casement Airbase

The Journal published an article about toxic chemical exposure claims at Casement Airbase and the effects chemicals had on servicemen and their families.

According to the article, a former Air Corps mechanic has made toxic chemical exposure claims at Casement Airbase to highlight a lack of health and safety procedures. The “whistle-blower” has alleged that servicemen, their partners and their children have suffered illnesses and development issues – and in some cases death – due to exposure to carcinogenic and mutagenic chemicals.

The claims were made under a protected disclosure agreement in an address to Ministers, TDs, senators and a Defence Forces representative. They were supported by documentation claiming twenty former servicemen may have died due to the exposure to toxic chemicals. Five children born with cancer-related conditions or birth defects are also claimed to have died due to their parents´ exposure.

The former Air Corps mechanic told the assembly: “I have come across several personnel whose wives have had multiple miscarriages both in serving and in retired personnel. In one case, a retired member’s wife had eight miscarriages in succession. I am also aware of three personnel who shared in an office in Casement´s engineering wing whose wives all had a miscarriage in the same six-month timeframe.”

The latest toxic chemical exposure claims at Casement Airbase are in addition to six personal injury claims already being made against the Defence Forces by former air corps servicemen. In their claims the former servicemen claim they were exposed to high levels of the restricted substance dichloromethane for up to twelve years despite the Defence Forces being aware of the health risks.

The Defence Forces have also been threatened with prosecution by the Health and Safety Authority (HSA) who last year conducted an inspection of the working conditions at Casement Airbase. Among a series of faults at the airbase, inspectors found a failure to conduct risk assessments or provide personal protective equipment to personnel working with hazardous substances.

When asked to comment on the latest toxic chemical exposure claims at Casement Airbase, a spokesperson for the Department of Defence told the Journal an independent investigator was reviewing the claims and there would be no comment until the final report was received and studied. A spokesperson for the Defence Forces told the Journal: “Given these matters are subject to litigation, it would be inappropriate to comment further.”

Revised Injuries Board Book of Quantum Soon to be Released

A revised Injuries Board Book of Quantum is due to be released in the next few weeks, with more detail included to assist the accurate assessment of claims.

The Injuries Board Book of Quantum – the guide to compensation for physical personal injuries in Ireland – was originally published in June 2004. Intended to assist with the assessment of personal injury claims in which negligence had been admitted, the Injuries Board Book of Quantum lists a range of injuries and assigns them a financial value according to their severity and permanence.

The guide is not solely used by the Injuries Board. Solicitors negotiate settlements based on the values listed in the Injuries Board Book of Quantum and courts use the guide as a means of determining compensation awards. However, in recent years the guide has been criticised by judges for falling behind the times. Judges have often compensated for the age of the Injuries Board Book of Quantum by increasing awards of personal injury compensation – for which they themselves have been criticised.

Economic factors – such as low interest rates – have not helped matters, especially in the settlement of catastrophic injury claims. Whereas previously, judges would factor in an interest rate of 3%-4% when awarding lump sum payments, most recently they has awarded higher amounts of compensation due to the lack of interest claimants will receive if the funds are deposited in an interest-yielding account.

Now, after months of discussion between the Injuries Board, the Courts Service and senior judges, a revised Injuries Board Book of Quantum is due to be released in the next few weeks. Those who have seen the work in progress say that the values for relatively minor injuries are being increased in line with the increased cost of living, while some reductions are being made in the values for more serious injuries. The values have been apparently calculated based on injury compensation awards in 52,000 cases between 2013 and 2014.

How the revised Injuries Board Book of Quantum will be received is not yet known. Insurance companies – struggling after years of reduced returns from their investments – will likely be dissatisfied with any increase in the value of personal injury claims. Judges might also be unhappy with awarding lump sum compensation awards that fail to ensure the financial security of a plaintiff who has suffered a catastrophic injury.

One thing that all parties should consider is that the Injuries Board Book of Quantum only addresses the personal injuries a plaintiff has suffered. Any verifiable psychological injury or any verifiable deterioration in the plaintiff´s quality of life should also be considered in the settlement of a personal injury claim in Ireland. Because of the likelihood of defendants and their insurance companies relying solely on the Injuries Board Book of Quantum to calculate their financial liabilities, it is advisable to speak with a personal injury solicitor if you have been injured in an accident in Ireland for which you were not to blame.

Employee Awarded Compensation for Falling Down Stairs at Dunnes Stores

A checkout operator from Wexford has been awarded €81,500 compensation for falling down stairs at Dunnes Stores after a hearing at the High Court.

Jean O´Reilly was working as a checkout operator at her local Dunnes Stores in Redmond Square, Wexford, when – on 9th December 2011 – she fell down a flight of stairs due to losing her footing while reading notices on the staff noticeboard.

An ambulance took Jean to hospital, where she received treatment for soft tissue injuries to her back and neck. Jean had to wear a neck brace for six weeks to support her head while she was unable to work, and she also underwent a course of physiotherapy to the damaged soft tissues so that they could recover their strength.

Jean applied to the Injuries Board for an assessment of compensation for falling down stairs at Dunnes Stores, but her employed failed to consent to the assessment being conducted. Jean was subsequently issued with an authorisation to pursue her claim for compensation through the courts, and she sought legal advice.

The claim for compensation for falling down stairs at Dunnes Stores was heard at the end of last week. At the hearing, Mr Justice Raymond Fullam heard that the staff noticeboard was placed too close to the top of the stairs and that there was no handrail along one side of the staircase that would have enabled Jean to arrest her fall before she was injured.

Judge Fullam found in Jean´s favour and said that Dunnes Stores had failed in its statutory duty of care to prevent the risk of injuries to its staff. He awarded Jean €81,500 compensation for falling down stairs at Dunnes Stores, comprising of €65,000 general damages for the pain, suffering and loss of amenity Jean had experienced, and €16,500 special damages for her loss of income and costs she had incurred.

Claim against an Airline for being Scalded by a Hot Drink made in New York

An injury compensation claim against an airline for being scalded by a hot drink has been made in New York against the Irish airline Aer Lingus.

The claim against an airline for being scalded by a hot drink was made by the mother of a young boy, who suffered burn injuries “as a result of scalding hot liquid” being spilled on him during a flight from Dublin to John F Kennedy International in June 2014.

The boy´s mother alleges that her son´s injuries were attributable to the negligence of Aer Lingus´ flight crew and that he is now “deprived of his enjoyment of life, pursuits and interests and in the future will be deprived on the same”.

Aer Lingus denies any claims that a member of its flight crew was negligent but, under the Montreal Convention, is liable to pay injury compensation if any passenger suffers any injury during a flight – irrespective of who was at fault for the injury.

Negotiations to settle the claim against an airline for being scalded by a hot drink are scheduled to get underway later this month and Aer Lingus has requested copies of the boy´s medical records to assess compensation for being scalded by a hot drink the boy may be entitled to.

Another Claim for being Scalded by a Hot Drink already in Mediation

This is the second claim against an airline for being scalded by a hot drink that has been made against Aer Lingus in recent months. Last August, another claim was filed against Aer Lingus in Jacksonville, Florida, on behalf of a ten-year-old girl scalded when hot tea was spilled onto her during a flight from Dublin to Orlando the previous month.

The girl´s parents are claiming $75,000 compensation from Aer Lingus on the grounds that – prior to her injury – their daughter was a “successful amateur competitive surfer”. The parents allege that the injuries sustained by the girl around her lower torso and upper thighs have caused her to suffer embarrassment and mental anguish as well as physical pain and suffering.

In the claim against an airline for being scalded by a hot drink, the parents allege that Aer Lingus failed to serve the tea “at a safe temperature” and failed to alert passengers to the “known dangers and the excessive and unreasonable temperature of the hot tea”. They also allege that Aer Lingus failed “to properly train flight attendants of the dangers of serving excessively hot tea to its passengers”.

Aer Lingus is disputing how much compensation for being scalded by a hot drink the girl is entitled to, but her parents are arguing that they will have to spend “great sums of money” on their daughter´s future medical care in addition to how much the accident has already cost them. This claim against an airline for being scalded by a hot drink is in mediation.

Aer Lingus Settles Previous Claim against an Airline for being Scalded by a Hot Drink

A much earlier claim against an airline for being scalded by a hot drink – this time in Ireland – has already been settled by Aer Lingus. On this occasion, five-year-old Sophie Gorman from Knocklyon in Dublin was scalded on an Aer Lingus flight from London, when tea placed on the tray in front of her mother spilled onto her leg due to the lid not being properly affixed.

On her daughter´s behalf, Sophie´s mother made a claim against an airline for being scalded by a hot drink. Aer Lingus did not contest the claim and made an offer of €7,000 compensation. In July 2012, the settlement offer was approved by Mr Justice Matthew Deery after hearing that Sophie´s burn had healed considerably after antibiotic cream prescribed by her GP had been applied, but that Sophie had a permanent skin pigmentation irregularity due to her injury.

Court of Appeal Provides Guidance for After the Event Insurance in Ireland

The Court of Appeal has overturned a High Court ruling relating to security for costs and has provided guidance for after the event insurance in Ireland.

Because of the significant costs of defending a court case in Ireland, defendants can apply to a judge for the plaintiff to deposit a security of costs with the court to ensure that, if the plaintiff is unsuccessful with their claim, the defendant is assured of recovering their legal costs.

The application, if granted, has been used in the past as a strategy to force plaintiffs away from litigation when they do not have the assets to place a security of costs; and consequently more plaintiffs are using after the event insurance in Ireland to protect them from exposure to financial losses.

After the event or ATE insurance is a policy that can be purchased by plaintiffs when they make a claim for compensation. No premium is charged for the insurance policy until the result of the case is known; and usually the premium is only then deducted from an award of compensation.

However, during a High Court case last year, a defendant challenged the legality of a plaintiff to use after the event insurance in Ireland. The defendant claimed that after the event insurance in Ireland was contrary to the common law of champerty – a law that prevents third parties (in this case an insurance company) from providing financial support in a court case that the third party has no direct interest in.

The judge hearing the court case – Judge Hogan – reviewed how after the event insurance in Ireland works, and ruled that the provision of insurance to plaintiffs was not “trafficking in litigation” – the deed that the law of champetry was introduced to prevent – because the insurance company´s exclusive motive in supporting the plaintiff was not to derive a profit.

The judge´s ruling was appealed by the defendant, and arguments for and against after the event insurance were recently heard in the Court of Appeal. In a written judgement from Judge Kelly, the High Court ruling was overturned because the insurance policy in question was “highly conditional” and the insurance company providing the ATE insurance could have avoided payment to the defendant “for a substantial number of reasons outside the defendant’s control and knowledge”.

However, Judge Kelly wrote in his judgement that an after the event insurance policy is a factor for a court to give consideration to in exercising its discretion whether to order security for costs. The judge wrote that after the event insurance in Ireland could be used as a full or partial alternative to security for costs provided that it did not contain terms that would allow the insurance company to avoid payment to the defendant in the event of an unsuccessful claim.

The Appeal Court´s opinion does not make it possible for after the event insurance in Ireland to be used in every circumstance, but it should certainly provide access to justice for many more plaintiffs – particularly in complex personal injury claims that revolve around issues such as medical negligence or breach of professional duty.

Majority Still Using Solicitors for Personal Injury Claims says Departing Injuries Board Head

The outgoing Chief Executive of the Injuries Board has acknowledged that the majority of claimants are still using solicitors for personal injury claims.

Patricia Byron acknowledged the continuing use of solicitors for personal injury claims in an interview published in the Irish Times this morning. Saying that “people still think that they need to go to a solicitor to send in a claim”, Ms Byron said that she was unsure whether that was due to a lack of knowledge or understanding of the Injuries Board system.

She went on to explain that the Injuries Board system is paper-based, with no oral or adversarial presentations required. When assessing a claim, Ms Byron stated, the Injuries Board does not take into account whether the claim has been sent in by a person with no legal training or whether the claimant has used solicitors for personal injury claims.

“It is an administrative process” said Ms Byron, who is stepping down from being the Chief Executive of the Injuries Board after ten years in charge. During that ten years, the Injuries Board claims to have delivered more than €1 billion in savings, reduced the cost of many personal injury claims in Ireland and reduced the time it takes for a claimant to receive compensation from three years to a little more than seven months.

However, the most recent figures released by the Injuries Board tend to support Ms Byron´s statement that the majority of claimants are still using solicitors for personal injury claims.

Only 39% of Personal Injury Claims Resolved by Injuries Board

Of 31,576 applications for assessment received in 2014, just 12,420 personal injury claims were resolved via the Injuries Board system. Not all of the remaining 61% of personal injury claims were resolved by solicitors, but those with liability issues or disputes over how much compensation the Injuries Board had assessed a claim for would have needed litigation to be settled.

Other claims (unfortunately) would have been resolved by third-party capture – where an insurance company makes an unsolicited approach to a claimant with a low offer of compensation in return for a quick settlement – while some claims will have dropped out of the system if the claimant did not have a genuine claims for compensation and gave up on their claim once liability was rejected.

Solicitor Defends Professional Guidance with Personal Injury Claims

In the Irish Times article, a representative from Dublin law firm Tyrrell Solicitors was invited to add his own perspective to Ms Byron´s admission that the majority of claimants were still using solicitors for personal injury claims. Roderick Tyrrell likened making personal injury claims to cutting your own hair, fixing your own leaking pipe or repairing a car engine.

Mr Tyrrell acknowledged that the Injuries Board provided a service for straightforward low-level claims, but when cases become more complex and there are “potential stumbling blocks” – like the value of a personal injury claim or identifying the legal entity against who to make a claim – claimants, insisted Mr Tyrrell, need guidance.

Ombudsman Told to Review Decision for Couple Disputing Mortgage Interest Rate Increase

A High Court judge has told the Financial Services Ombudsman to review a decision it made against a couple disputing a mortgage interest rate increase.

Mr Justice Gerard Hogan handed down his instruction to the Ombudsman in a recent case – Millar -v- Financial Services Ombudsman – which had been brought by Kenneth and Donna Millar of Portmarnock, County Dublin, after a complaint made by the Millars against Danske Bank had been rejected by the Ombudsman.

In their complaint, the Millars had claimed that their lender was in breach of contract by raising the mortgage interest rate on their six investment mortgages and a mortgage on their family home at a time (November 2011) when the Central European Bank was reducing interest rates to an all-time low.

The Millars said that – under the terms of their mortgage agreements – Danske Bank was only supposed to raise or lower the interest rate on their mortgages “in line with general market interest rates”. However, when the Millars started disputing the mortgage interest rate increase, they were told by Danske Bank that the European Central Bank´s interest rates were irrelevant.

The Millars also claimed that at the time they had taken out their variable interest rate mortgage, the information provided to them stated “When interest rates go down your monthly payments do likewise. However, when interest rates rise, your monthly payments will increase too”. Although their mortgages had been taken out with the National Irish Bank, they expected the Danske Bank to honour their contract after the National Irish Bank was rebranded.

The Ombudsman reviewed and rejected the Millar´s complaint it on the basis that the contentious clause in their mortgage agreements stated that the bank would amend the mortgage interest rate “in response to market conditions” and not “in line with general market interest rates”. The Ombudsman also supported the bank in its assertion that it was not obliged to release details of how risk assessments were conducted on Kenneth and Donna Millar.

The Millars continued disputing the mortgage interest rate increase, and their case went to the High Court where it was heard by Mr Justice Gerard Hogan. Judge Hogan disagreed with the Financial Services Ombudsman´s rejection of the Millar´s complaint because the text of the clause in question was ambiguous in the “general factual background against which the contract was entered into”.

The Judge dismissed the Ombudsman´s rejection of the Millar´s complaint and told the Ombudsman to conduct another review of the complaint against Danske Bank “in a manner not inconsistent with this judgement”.

What are the Consequences of Judge Hogan´s Verdict?

The consequences of Judge Hogan´s verdict could have a significant impact on Ireland´s estimated 207,000 property owners that have variable interest rate mortgages like the Millar´s – albeit subject to a contentious clause existing in their mortgage agreements.

Although Mr Justice Gerard Hogan did not agree that Danske Bank were in breach of contract or instruct the lender to reveal how the Millars were assessed, the potential exists for thousands of homeowners to start disputing a mortgage interest rate increase knowing that there is an alternative course of action if the Ombudsman rejects their complaint.

If you are one of the 30 percent of the Irish mortgagors that have a variable interest rate mortgage, and you would like to find out more about disputing a mortgage interest rate increase, you are invited to call our 24 hour helpline to speak with a solicitor experienced in the financial services sector. Calls to our helpline are totally free, totally confidential and totally without obligation on you to act on any of the advice we provide.

EU Flight Delay Compensation Rules Clarified by Court of Justice

The Court of Justice in Luxembourg has clarified EU flight delay compensation rules about how the arrival time of a delayed flight should be recorded.

When the original EU flight delay compensation rules were originally enacted in 2004, there were a number of elements that were absent from the legislation. One such element was how the arrival time of a delayed flight should be recorded.

This is an essential part of the EU flight delay compensation rules because flights can depart more than three hours later than their scheduled departure time, but make up time in the air and arrive at a destination less than three hours later than the scheduled arrival time.

Flight delay compensation is only payable when a flight arrives at its destination three hours or more later than its scheduled arrival time, but there have been some disputes over what constitutes the arrival time of a flight – with airlines claiming it is when the wheels of the aircraft touch the tarmac of the runway.

However, any passenger who has arrived at a busy airport will be aware that there can be a considerable passage of time before they can disembark; and clarification of the EU flight delay compensation rules was recently sought by a group of passengers who experienced a late arrival on a Germanwings flight from Salzburg to Cologne/Bonn.

Germanwings refused to pay flight delay compensation as the wheels of the aircraft touched down 2 hours and 58 minutes later than the plane´s scheduled arrival time. The dissatisfied passengers joined forces, and took their claims for delayed flight compensation to the Court of Justice in Luxembourg.

At the hearing, the judges ruled that the arrival time of a delayed flight should be recorded as the moment the first door is opened to allow passengers to disembark – resolving the claims in favour of the Germanwings passengers and clarifying another element of the EU flight delay compensation rules.

Recovery of Certain Benefits and Assistance Scheme will Delay Receipt of Compensation Settlements

The introduction of the Department of Social Protection´s “Recovery of Certain Benefits and Assistance Scheme” will delay receipt of compensation settlements due to the additional processes involved.

 The “Recovery of Certain Benefits and Assistance Scheme” is a new scheme introduced as part of the Social Welfare and Pensions Act 2013 that comes into force on Friday 1st August and which allows the Department of Social Protection (DSP) to recover selected welfare payments made to recipients of personal injury compensation.

The scheme will have no impact on how much compensation plaintiffs will receive – as under the current system welfare payments are deducted from settlements of compensation for loss of earnings – but it will delay the receipt of compensation from insurance companies, who have to go through an elaborate procedure in order to satisfy the new regulations.

Under the Recovery of Certain Benefits and Assistance Scheme, insurance companies – or other parties responsible for paying injury compensation settlements – are required to apply for a statement from the DSP pertaining to the value of certain welfare payments a plaintiff has received in the previous five years. This statement should be released to the compensator within four weeks.

Thereafter, the compensator must then release the funds to the DSP and wait for a “recoverable benefits certificate” to be returned before making payment to the plaintiff. Depending on the efficiency of the DSP´s administrators, the delay in receipt of compensation payments could be as long as three months.

Copies of the benefits statement will also be sent to the plaintiff and the Injuries Board (in cases where the Injuries Board have completed an accepted assessment) detailing the deductions that are to be made under the Recovery of Certain Benefits and Assistance Scheme – the “Certain benefits” being:

  • Disability Allowance
  • Invalidity Pension
  • Injury Benefit
  • Illness Benefit
  • Partial Capacity Benefit
  • Incapacity Supplement

It is important for a plaintiff to know it is not their responsibility to make payments themselves to the DSP and that an appeals procedure exists in the event that the value of welfare payments is contested. If there is any confusion over the Recovery of Certain Benefits and Assistance Scheme, it is recommended to speak with a personal injury solicitor.

Court Finds Couple Negligent in Dog Bite Injury Claim for Compensation

The High Court has found a Kilbeggan couple negligent in a dog bite injury claim for compensation brought against them by their postman.

Joseph Dunne (63), also from Kilbeggan in County Westmeath, was delivering letters to the home of  Olive Dalton and Martin Maher of Dublin Road, Kilbeggan when, on 8th October 2008, the couple´s husky-type dog escaped from their garden through a hole in the hedge and attacked him.

Joseph was knocked to the floor by the dog, and endured a terrifying attack while the dog continued to claw and bite him. Fortunately a passer-by was able to halt the attack by striking the dog across the back with a stick and an ambulance was called to take Joseph to hospital.

At the hospital, Joseph received twenty-two stitches for lacerations to the right side of his face and received treatment for nerve damage to the right side of his forehead. When the stitches were removed, it was necessary for Joseph to undergo plastic surgery to disguise his scars.

After seeking legal advice from a solicitor, Joseph made a dog bite injury claim for compensation against Ms Dalton and Mr Maher – alleging that they had been negligent in failing to enclose their garden securely and for not informing An Post of the potential dangers of delivering post to the property.

The couple denied their liability for Joseph´s injuries and the case went to the High Court in Dublin, where Mr Justice Michael Moriarty was told that the dog had been put down on the day following the attack.

After hearing evidence from both parties, the judge found in Joseph´s favour, and awarded him €55,000 in settlement of his dog bite injury claim for compensation – commenting that Joseph had been brave to return to work so soon after what must have been a particularly frightening event.

Post Traumatic Stress Compensation Offered to Airplane Crash Survivors

Survivors of the San Francisco airplane crash last month have been offered $10,000 post traumatic stress compensation from the airline company.

Three passengers died in the crash at San Francisco International Airport on July 6th, when a Boeing 777 carrying passengers from Seoul misjudged the height of a seawall on the perimeter of the airport and crash-landed on the runway. Forty-nine of the 181 passengers taken to hospital that day still remain in a serious condition, with doctors fearing that the spinal injuries suffered by some could become a permanent disability.

The offer of post traumatic stress compensation offered by Asiana Airlines will be paid to all of the 288 survivors who were travelling on the plane – whether they suffered a physical injury or not – and is not conditional on passengers waiving their right to claim further personal injury compensation for a plane crash under the terms of the Montreal Convention.

Under the Montreal Agreement, any airline carrier is automatically liable for injuries sustained by a passenger while travelling on an airplane, however US citizens will be entitled to far higher settlements of compensation due to their own national legislation than other nationalities once the investigation by the US National Transportation Safety Board (USNTSB) into the cause of the crash is completed.

Final settlements of plane crash injury compensation may take many months to determine, for as well as the possibility of spine injuries deteriorating into a permanent disability, it may be the case that passengers may be eligible for further payments of post traumatic stress compensation if a high degree of psychological injury is diagnosed once the USNTSB´s investigation is completed.

Hit and Run Compensation For Another Cyclist

After the news of a catastrophically injured cyclist who last month received compensation for a hit and run accident, another cyclist has been awarded hit and run compensation after the car driver that knocked him from his bike was traced and charged with reckless driving.

Jack Dixon (59) was cycling his bike from his local station to his home in Great Waltham, Essex, during a September evening in 2010, when a car cut left immediately in front of him to avoid some temporary traffic lights that were situated directly ahead. The car struck the front wheel of the cycle with force, and sent Jack tumbling onto the road – leaving him with a fractured shoulder blade and a dislocated shoulder.

The motorist speeded off, but a bystander who had witnessed the accident gave chase and was able to take down the car´s registration number. Police and solicitors acting on behalf of Jack were eventually able to track down the reckless motorist, who accepted liability for accident and Jack´s injuries. The solicitors got in touch with the driver´s insurance company, and a settlement of 11,000 pounds hit and run compensation was negotiated.