Some Common Claims

Road Traffic Accidents I

A significant amount of negligence cases arise from road traffic accidents. Formerly, such cases constituted a high proportion of all cases before the courts. The introduction of the PIAB has required that all cases are filtered through PIAB, now the Injuries Board.

Road traffic claims and disputes are determined by reference to principles of due care and negligence. Typically when there has been an accident it will be clear who is legally responsible. In some cases, it may not be apparent and there may be a claim and counterclaim. The court may find elements of fault on both sides so that fault and damages is apportioned.

Road traffic claims will usually be decided by reference to the proper duty of care for a reasonable driver in the circumstances. The rules of the road may be relevant in determining where the fault lies.

Many cases involve children. It is well established that the drivers must have a heightened degree of vigilance in the vicinity of children. The presence of children casts a heavy responsibility on the driver. The driver must be mindful that children may act without heed to their own safety and must keep a watchful eye.

The general rules in respect of road traffic accidents of road traffic driving are well established. The so-called Rules of the Road as published by the Government are a summary of the Road Traffic Bylaws, which are legislation made under the Road Traffic Act. The rules have existed and been updated over decades. They set out specific rules of driver behaviour.

Apart from the negligence and civil aspects, a drivers behaviour in an accident may constitute a criminal offence. One or both drivers may be prosecuted, typically by the Gardai in the District Court.

Road Traffic Accidents II

It is an offence to drive without due care and attention. Careless driving and dangerous driving are more serious offences. There are more serious offences where death is caused. Dangerous driving causing death can be prosecuted on indictment in the Circuit Court before a jury. The respective seriousness of the offences differ. Each carries penalty points and endorsements. The driving offence is heard separately in a criminal hearing in the district Court stabbed

There are certain general rules principles reflected in road traffic accident cases. The prime duty of the driver’ is to keep a look out and take due care and attention or other road users. A driver is not entitled to assume that others will not act negligently and must act accordingly.

He may be deemed aware that in some cases that pedestrians may be drunk or may not act the proper care and attention for themselves. There is a general obligation that one should be able to control and stop the vehicle within the limits of one’s own visions.  There may be circumstances where this is not possible.

A driver may be blinded momentarily. A driver may be negligent to pedestrians even though they do not act the proper care and attention for their own well being. Issues of contributory liability may arise. Motorist must take care in the vicinity of a cyclist.

Many accidents occur as a road junctions. A high degree of caution and uses a both roads..  Drives must approach junctions with reasonable caution. The bye rule ill to the effect that a person must yield to traffic to right does not necessarily mean that others can take no precautions against a breach be brought traffic bylaws Failure sound horn many be negligence that

Road Traffic Accidents and Gardai

Road traffic accidents are typically reported to Garda Síochána.  Where there is a personal injury, there is a legal obligation under the Road Traffic Act, to report the accident or incident.  Gardai will usually attend and may take statements, make notes and sketches of the scene.  This may be important in evidential terms in determining fault and the circumstances of the accident.

The Gardai may prosecute one or both drivers for driving without due consideration, careless driving or dangerous driving, as well as other road traffic offences that the circumstances may justify.

Garda stations keep records of accident reports with particulars of names of the parties, insurance details, registration numbers and the time and place of the accidents.

Whiplash

Whiplash injuries commonly occur in certain road traffic accidents, in particular where there has been a rear collision.  They arise from hyperextension back and forward of the neck in quick succession.  They may also occur in the context of other types of accidents having a similar effect.  Symptoms may involve pain and stiffness in the neck, shoulder and lower back.  Secondary symptoms may involve headaches, fatigue, vision and memory problems.

Whiplash is controversial and difficult to diagnose. Of necessity medical evidence from doctors and consultants who have seen the claimant in the aftermath of the incident or accident, will form the basis of proof of such a claim.

In some cases, road traffic accidents may be attributable to negligence on the part of the road authority or utility companies in creating a hazard on the road or pathway, which caused the accident.  This may involve roadworks which have not been properly guarded or have been negligently undertaken.  The distinction between nonfeasance and misfeasance arises in this context.

In the case of uninsured or untraceable drivers, the Motor Insurance Bureau of Ireland may pay an award of compensation, if the negligent driver cannot as is usual, pay the award or cannot be traced.

Rear end

Rear end accidents are a common source of personal injury in road traffic cases. They are  almost invariably attributed to negligence on the part of the rear driver, including inattentive driving, failure to stop within a distance which is clear and failure to take note of the relevant conditions.

Less commonly, rear end accident it may be due to road conditions or even the fault of the driver in front caused wholly or partly by sudden breaking or poor signalling. His rear brake lights may not be working.  In such cases,  the front driver may be partly or wholly to blame.

A passenger’s injuries may be attributable to the negligence of the driver or that of a third-party driver, whose vehicle has collided with the vehicle in which he is a passenger. The claims may be made by the passenger the driver, the party, or commonly both of them.  There may be negligence on the part of a road authority, which may be the cause of or may have contributed to the loss and damage concerned.

Slip and Fall

Another common category of claims arise from slips and falls in public places.  This may be in the street or in some other public environment such as in a retail premises or on public transport.  A duty of care is owed by owners and occupiers in relation to the state and condition premises which they control. The duties are commonly referred to as occupiers’ liability.

The duty of occupiers varies with the circumstances.  The Irish courts have gone some considerable way towards creating absolute liability (regardless of fault)  for public authorities and businesses in relation to slip and fall claims.  They have held such occupiers to a very high standard of care in some types of case, such falls on spillages in supermarkets.

Many claims have arise from tripping and falling in streets and in particular on the public path / pavement,  due to factors such as its  uneven condition, holes, unexpected ice and unfenced works.

Evidence of the incident / accident may be available on CCTV.  The persons involved may have taken footage after the event, of the particular scene on a camera / mobile phone.

The parties, most pertinently the defendant, is obliged to make the discovery of  written information relevant to a claim. This may include records and reports on the accident.

Fatal Accidents

A fatal accident may give rise to a claim for those who were financially dependent on the  victim for loss of financial support.  This includes support in monetary and non-monetary terms including childcare and household responsibilities.  Generally, the dependents will be spouses, former spouses, children or other dependents.  They may be parents  or other relatives who are in fact dependent.

Fatal injury claims are founded on the negligence of the third-party, who is the substantial cause of the accident.  The claim must be brought within two years of death.

Medical Negligence

Medical negligence claims are based on negligence by a medical practitioner or other agent or employee of a medical organisation.  Claims may be made against doctors, nurses, dentists, consultants, plastic surgeons, psychologists, hospital administrators etc.  This basis  of the claim is that a competent person in the relevant field would not have undertaken the particular treatment of course, would have undertaken it differently or that the relevant injury could otherwise have been avoided by a competent practitioner. The alleged personal injury must be caused by the negligence.

Medical negligence claims may be caused by in an error made during a medical procedure.  It may arise in the delay or failure to diagnose or a misdiagnoses.  It may be attributable to inadequate follow-up care.  There may be an error in a prescription or administration of medicines.

In the case of a claim against the hospital as such, (and not as the employer), the negligece may be  due to poor hygiene or the negligent organisation of the hospital.

It is usually necessary in a medical negligence claim, to obtain an opinion as to what is accepted practice and that the alleged treatment, diagnosis or omissions etc. is negligent.  This may often require the expertise of an independent practitioner in the field.  It must be shown on the balance of probabilities that the medical practitioner was negligent and that the injury could have been avoided in the circumstances, if another alternative course was taken.

It is not sufficient to show that alternative courses might have prevented the injury.  It is not enough to constitute negligence that the medical practitioner has taken a course that which is not the best practice or with which another medical practitioner might agree.  It must be shown to be negligent, in the sense that it falls short of the standards of a reasonably competent practitioner in the relevant field.

Claims may arise against the hospital on occupiers liability ground or on failures in hospital management.  Hospital acquired diseases may result from poor hygiene whether in the environment or in treatment, through lack of hygiene or food poisoning.  The liability will be that of the hospital.

Workplace

Under health, safety and welfare legislation, owners of businesses are obliged to keep accident report records.  In certain cases, above a certain threshold of seriousness, they may be obliged to notify the Health and Safety Authority.  The Health and Safety Authority may investigate and prosecute owners or occupiers of premises. In some cases they may take civil sanctions / enforcement action.

Injuries at work may arise from an incident or accident or from prolonged exposure to particular conditions.  See the separate chapters on workplace regulation, workplace employer’s liability and occupational diseases.

Workplace claims must be referred to the Injuries Board in the first instance. Incidents or accidents may result, for example, from moving equipment, falls or the operation or failure of equipment.

Occupational injuries may arise from long-term exposures to particular circumstances and conditions.  This includes the likes of repetitive strain injuries, Carpal Tunnel Syndrome, burns, falls and vibration white finger.

An employer’s duty of care extends to the psychological well-being of his employees, at least in some circumstances.  Cases based on stress and bullying, may be the subject of employers’ liability claims, either directly, in terms of a failure to organise a safe place system of work, safe fellow workers or by reason of the vicarious liability arising from the actions of the other fellow employees.

Construction sites and farms pose particular risks.  Builders often work at height and  accidents may involve falls.  They may work with heavy equipment, hazardous substances or be involved in lifting heavy objects.  Injuries may arise from a sudden accident or incident or from exposure to substances.  In practice, employers have a heavy onus when it comes to workplace injury.  Although, employer’s insurance is not mandatory in Ireland, but it is highly desirable.

Carpal Tunnel Syndrome

Carpal Tunnel Syndrome affects hands and fingers arising from repetitive and forceful movements of the hand and wrist in employment.  It may have a variety of consequences but may cause the person concerned to lose the ability to grip small items, form tasks.  In some cases, there is more substantial consequences.

The Carpal Tunnel is a passageway within the wrist with floors and walls of the tunnel formed by carpal bones of the wrist and the roof formed by the carpal ligament.  There are two such tendons within the tunnel.  Carpal Tunnel Syndrome may arise in persons involved in repeated data entry on computers, persons involved in an assembly line activities, sowing, cleaning and food packing.

The syndrome may be immobilizing if allowed to deteriorate.  The date of knowledge test will be relevant in the context of the statute of limitations.

Product Liability

Where a faulty product causes a physical injury, there is strict “product” liability.  This may arise against a range of persons, general the manufacturer, but in some cases against importers and other.   Product liability arises where there are defects in design or manufacture, which make the product dangerous, irrespective of fault or the care taken in the manufacturing process.   Frequently, the defect comprises failure to warn about known risks.

It is necessary to prove personal injury was caused as a result of a fault in the product.  Product liability claims of up to €2000 may be heard under the small claims procedure.

Professional Negligence

Professional negligence claims commonly arise against doctors, solicitors, barristers, valuers, archtects and surveyors.  In the usual way, it is necessary to prove there has been a failure to comply with the standards of the relevant profession.  Expert evidence will usually be required.

Liability is usually on the basis of negligent misstatement.  Personal injuries will be unusual and the Injuries Board has no jurisdiction.  The loss is usually a financial loss arising from the negligent advice or service. In some cases of medical negligence, the negligence may lie in the manner in which an act is undertaken (e.g. in a surgical operation)