A plaintiff was involved in a minor road traffic accident at the traffic lights junction on the Stillorgan Dual Carriageway near the Radisson Hotel. The plaintiff claimed that she suffered whiplash injuries when the defendant’s Land Rover car collided with the rear of her Audi car while she was stationary at the traffic lights. In the €60,000 claim, the plaintiff alleged that she had been shocked and distressed by the collision. She told the court that she had no intention of taking a case against the defendant until she was advised by her doctor that she had suffered whiplash injuries to her neck and shoulders and required medication for pain.

The defendant, in his defense, told the court that his car had rolled forward a few yards into the defendant’s car causing damage to her bumper for which he paid her just under €1,000 for a replacement bumper. Photographs were produced in court taken by a private investigator showing the plaintiff carrying out activities without showing any sign of difficulty, these included carrying shopping bags and easily getting into and out of her car. On the photos being produced, the plaintiff agreed that the person in the pictures was indeed her.

The defendant, having paid for the replacement bumper, was flabbergasted when the summons was served on him.

The judge found the evidence of the defendant was detailed and credible and that all the evidence demonstrated that the accident was minor. The judge further stated that the case smacked of opportunism in what looked like an overstated injury following a minor accident. 

The case was dismissed with costs awarded to the defendant.   

This case shows the risks in taking these types of accident cases to court. The plaintiff in this case, instead of being awarded money for whatever injury she actually incurred, was left with no award and a court order to pay the legal costs of both sides in the case which will run to several thousand Euros.

Collins v Tansey Dublin Circuit Court 12 May 2023. 

Benson Fuel Ltd is a small family business involved in the distribution of liquid gas in south Wexford and Wexford town under a contract with Flogas Ireland Ltd. It has been a long-standing business relationship under contract which was renewed from time to time.

Flogas sought to terminate the contract under the terms of the last agreement entered between the parties as it wanted to establish a new direct distribution model. Flogas claimed that upon the expiry of a written agreement, in September 2021, the contractual relationship between the parties ended. After that they claimed that they would transact business between each other on an “orders placed basis”. Flogas claimed that there was no obligation on it to give any notice of termination at all and, alternatively, a nine-month notice period given to Benson was reasonable in all the circumstances.

Benson sought from the High Court an injunction restraining the termination of the alleged agreement pending the full hearing of its case. Flogas opposed the application.

Benson has two full-time employees, David Benson and his nephew, Alan Benson jnr. The business was set up by Alan Benson snr in and around 1978 and has been distributing propane and LPG in the south Wexford area since about 1982. Benson was a profitable company and there was no suggestion that it had failed to perform its obligations as exclusive distributors.

The arrangement with Flogas accounts for about two-thirds of Benson’s revenue. David Benson believes the company would have to enter liquidation if the distribution arrangement with Flogas is terminated. Flogas and Calor Gas hold 90% of the market and it would be difficult to find an alternative supplier, it was submitted to the court.

The judge considered whether damages would prove an adequate remedy should the plaintiff succeed in its action or whether an injunction was merited at this stage.

The judge did not think there was any basis, in the absence of any detail of significant financial loss, to conclude that the undertaking as to damages (if it loses the case) provided by Bensons was worthless. Benson’s undertaking as to its ability to pay damages had to be of substance.

The judge ruled that he was satisfied Benson had established a serious issue to be tried.



In his decision on the injunction, the judge ruled that the balance of convenience supported the grant of an injunction for a short period restraining the defendant from terminating the existing arrangements pending the trial of the action.

Benson Fuels Limited v. Flogas Ireland Limited [2023] IEHC 214.

It cannot be said often enough that injuries alone will not be compensated in any court. A plaintiff must establish negligence on the part of the defendant and that this directly caused the injuries complained of. 

 In a recent High Court case, a student suffered injuries having been thrown by a horse which ‘bucked ‘and threw her to the ground. However, the plaintiff lost her case as she failed to establish that the equestrian centre had placed her on an unsuitable horse, without any prior warning, and was therefore negligent. 

The student was an experienced rider and that day she was riding a horse called Mocha when it unexpectedly bucked and threw her to the ground. She suffered back injuries as a result and sued the equestrian centre. 

In short, the plaintiff claimed that she had been given a horse with a known propensity for bucking and was not warned in advance and was therefore placed in danger.  The plaintiff student tried to rein in the horse when Mocha started bucking and claimed that Mocha did not obey but instead sped up and veered left throwing her off. A witness for the plaintiff blamed the accident on the horse and not the rider. 

The defendant stated in evidence that the accident was due to rider error and not because the horse was unsafe or had a poor temperament.

The High Court found in this case that two sets of experts were basically disagreeing with each other as to who was culpable. The chief issue here was whether Mocha had a propensity to buck which the plaintiff should have been warned about. The court accepted the defendant’s evidence that a bucking horse would not have been used by the riding centre. In addition, several of the riding centre’s staff attested to Mocha’s good temperament and confirmed no issues had arisen in the past with her. 

The court also found that the plaintiff’s witness evidence was less than satisfactory and in some areas was inconsistent. The riding centre had not followed up with this witness after he had commented in court on Mocha’s propensity to buck. 

The court dismissed the plaintiff’s claim finding that the defendants could not be held liable for the horse bucking. The court favored evidence given on behalf of the riding centre, that the horse did not have any known propensity to buck and there seemed little evidence to suggest that Mocha was not a suitable horse for the rider. 

Allen v Clonshire Equestrian Centre [2023] IEHC 10. 

Under the old system, where a plaintiff suffered multiple injuries, each of his injuries was assessed and added together. 

Under the new regime, according to the personal injury guidelines, a sum is awarded for the major injury and an uplift is then awarded to reflect any lesser or other injuries. The object is to ensure that the overall award is proportionate. A recent High Court case, in December 2022, showed how the new guidelines were implemented where the plaintiff still received a generous sum in compensation despite fears that awards would be less than adequate under the new system.

The plaintiff was rear ended by a van and basically claimed two types of injury. Firstly, his shoulder injury required surgery following complaints the plaintiff made of intermittent pain and difficulty with lifting and sleeping. Several months later, he was still complaining of discomfort and received a course of steroid injections. 

Secondly, the plaintiff complained about psychological problems affecting his mental health. His work, social and sporting activities had all been severely affected. He was diagnosed with a depressive illness some years after the accident.

The Plaintiff’s legal team put a value of € 60,000 on his shoulder injury and  € 20,000 for his psychiatric issues. The insurance company for the defendant offered far less for his shoulder injury and only € 5,000 for his psychiatric injuries as they described that as a minor disability. 

The Court found the plaintiff was honest in describing his injuries. It accepted that surgery had helped him, but the plaintiff continued to suffer pain, discomfort and limitation and it appeared these symptoms would be permanent. His swimming activity had been almost totally cut short. 

The court awarded him €55,000 for his shoulder injury and € 20,000 for his psychiatric injury. They attributed €50,000 for pain and suffering to date and € 25,000 for pain and suffering into the future. Special damages were added to the general award of € 75,000. 

McDonnell v Upton Foods Ltd [2022] IEHC 680

Two financial funds and receivers appointed over three Dublin housing developments sought an injunction in the High Court to restrain the alleged owner of the developments from making public confidential financial information about the two financial companies.

The plaintiffs sought a temporary injunction restraining the person in possession of the information from using, publishing, distributing or disseminating any information he claimed to have acquired about the financial funds.

In 2022 the plaintiffs appointed receivers over three developments owned by Victoria Homes which is the subject of proceedings currently before the High Court.

The court was told that the individual sent an email on 14 ^th  April stating ‘the whole Lotus loan book accounting to €110 million'. He claimed the file he had contained the names and personal details of everyone on the Lotus Decalia DAC loan book. His email said it ‘makes great reading’. 

The defendant claimed that the financial information was sent to him by somebody working for the financial firms. The email was read to the court.

The High Court granted the temporary injunction restraining the person from publishing, distributing or disseminating any information he had in his possession about the financial funds.

Emerald Sky 11 DAC and Lotus Decalia DAC v Patrick Byrne High Court 19 April 2023

A farmer who received €140,656 under the Scheme and did not include it in his annual tax returns received a Revenue demand for €72,728 which they claimed was a tax liability on the Scheme’s payment.

The farmer appealed their demand to the Tax Appeals Commission.

It was argued on the farmer’s behalf that the Revenue Commissioners were out of time to issue the amended assessment under tax law which imposes a four-year time limit.

The Appeal Commissioners agreed that the Revenue Commissioners were incorrect to issue the demand as it ruled that the assessment was outside the time limits under the Tax Acts and directed that the assessment be reduced to zero.

The Appeal Commissioners, on reviewing the facts, were satisfied that the farmer’s tax return for 2011   was ‘complete, accurate and truthful’. It ruled that it was immaterial whether the Scheme’s payment to the farmer was taxable as the Revenue Commissioners were out of time in issuing their amended assessment.

The farmer had several land interests during the year of the assessment and in May 2011 incorporated his farming business into a company along with transfers of assets and the herd numbers. In October 2011 he received the €140,656 payment under the Scheme to his bank account and the sum was subsequently transferred to the bank account of the new company. The farmer did not include the Scheme’s payment in hie personal income tax return for 2011 but did include it in corporation tax returns for the year ending May 2012.

A Farmer v The Revenue Commissioners Tax Appeal Commission, April 2023. 

Some judges dealing with Bankruptcy cases over the years took the view that a Bankruptcy Petitioner brought his action on behalf of all creditors and not just himself and so costs did not necessarily follow even if the petitioner was successful, and the debt was paid.  A recent High Court case, in December 2022, in effect overturned this practice and now a debtor must also pay all the costs of a Bankruptcy petition against him even where the debt is paid off at an early stage.

In this case the Revenue Commissioners had a judgement against a solicitor and issued a Bankruptcy summons in 2019 to enforce the debt. The Bankruptcy action dragged on for some years and in 2022 the debt was finally discharged but an argument ensued about who should be liable for the costs of the Bankruptcy proceedings to date although the debt itself had been fully paid. 

The Revenue pointed to a 2011 case, MCR Personnel, where a plaintiff obtained a money judgement and then proceeded to bring a petition to wind up the debtor company. The debt was subsequently paid, and the Petition was withdrawn. It was found here that the debtor company should pay the costs of the proceedings to date even where they were withdrawn following payment. 

The Court found in the Revenue case that Bankruptcy was clearly a civil proceeding and as such the well-established principle of costs following the event was fully applicable. The judge agreed with the MCR case and said the full payment of the debt owed was an event after which costs should be awarded. As the debt in question had been fully paid then, by any objective standard, the Petitioner had won the day and should be awarded his costs.

It should be noted that the court always has a discretion on costs but in future the discharge of a debt will result in a costs order against the debtor even where the Bankruptcy Petition was not fully prosecuted. 

So, the Revenue recovered their legal costs of the Bankruptcy action as it went through the courts on top of the debt or taxes owed. This would have added a considerable sum to the original taxes owed as the unfortunate debtor now has to contemplate two separate sets of costs on top of the taxes due. It would be helpful if solicitors could bring this to the attention of any clients against whom a Wind-Up petition is brought. 



Howley (Collector General of Taxes) v Lohan [2022] IEHC 694

A mother sued the HSE for injuries sustained by her newborn baby which she claimed arose due to a breach of duty of care owed to her and her baby by the HSE. 

It was pleaded on behalf of a four-year-old boy that there was a failure to induce labour twice and that he would have escaped injury if he had been delivered sooner. Because this did not happen, he suffers quadriplegic spastic cerebral palsy, he cannot speak and is visually impaired. There were, it was claimed, deficiencies in care provided to his mother leading up to the birth of her son.

Tipperary University Hospital apologized for the deficiencies in care and the case against the HSE was settled in the High Court with an interim payment of €4.58 million. The HSE admitted a breach of duty but denied the child suffered injuries as a result.

Counsel for the child said that his mother was discharged from the hospital on 22 May 2018. He said the case notes stated the labour ward was busy and the patient was happy to go home, which, he said, suggested operational pressures were the reason for the discharge. It was planned the mother be induced two days later. The HSE admitted that it was in breach of its duty of care in the management of the mother’s pregnancy on different occasions in May 2018, resulting in a failure to induce labour. It further admitted a breach in their duty of care in the management of the mother following the spontaneous rupture of membranes on 24 May 2018.

The cause of the boy’s cerebral palsy remained an issue in the case and there will be a review of the case in court in five years. 

Meaney v HSE High Court 10 March 2023

In April 2020 a postmortem was carried out on Michael Daly Snr of Limerick and returned a verdict of death by natural causes. However, later the medical notes of the deceased were discovered by his son and a second postmortem was carried out.

The second coroner, John McNamara modified the findings from death from cardiac failure to cardiac disease on a background of recent bowel cancer, surgeries, infection, sepsis and peritonitis.

The coroner’s decision was based on a review of the case by the former State pathologist Prof. Marie Cassidy who was commissioned as an independent witness.

On reviewing all the evidence of the medical history of the deceased that on the balance of probabilities, which was the appropriate standard to assess the case on, the coroner  was satisfied that the appropriate verdict was one of medical misadventure brought about by the sepsis infection.

In the Matter of Michael Daly Snr, Deceased Limerick Coroner’s Court, 9 March 2023. 

Award Reversed on Appeal

Plaintiff who slipped on ice outside his apartment has € 60,000 award overturned on appeal. 

The appeal court found the plaintiff had failed to explicitly plead certain claims of negligence and in addition the trial judge had made some incorrect findings. 

The plaintiff lived in an apartment where his hall door led on to an open air landing from where steps led down to the ground. He left for work early in November 2016 and it had been icy overnight. It was also dark as the light over the plaintiff’s door was broken.  He slipped on ice and fell down some steps.  He sued the management company. 

The High Court awarded him €60, 000 damages and found that: 1. The path outside was in the control of the defendants who had a duty to grit these areas. 2.Anti-skid strips should have been fixed to the steps. 3. The faulty light contributed to the problem. 

However, on appeal, the court found the trial judge was wrong in certain of his findings.  The hall door light was never the responsibility of the defendants as it belonged to the plaintiff. The plaintiff had relied on three issues at trial: The lack of lighting, the absence of gritting and securing the steps with anti- skid material. However, although the lighting issue had been pleaded late in the day, the other issues were never actually pleaded at all despite a helpful engineer’s report secured by the plaintiff. The court found this was unacceptable and insisted the parties should provide full and detailed particulars of each allegation making up their claim. The lack of detailed pleadings made it impossible for the defendants to deal with the claims they had to meet based on the pleaded case. 

The engineer’s report was detailed but the court stated this was no substitute for pleadings and every plaintiff had to properly plead a case they wished to have tried. The report was not conclusive on the benefit of anti-skid matting. As for gritting, the court found that gritting may have avoided the accident but did not mean the defendant was therefore liable for the accident. The defendant was not under a duty to lay grit on the landing. A property management company would have obliged, if asked, but none of the 98 complexes it managed required gritting on its footpaths or steps. 

It was claimed the management company should have gritted the common areas in advance of bad weather but the court held this was too onerous and an unreasonable duty to fix management companies with. 

The appeal court found the plaintiff was also bound to take reasonable care for his own safety. The plaintiff had lived there for years and should have anticipated the likely consequences of ice on the landing in very cold weather. He was largely responsible for his own accident. The court allowed the appeal and overturned the earlier award. 

Ahmed v Castlegrange Management Company limited [2022] IECA 269 

STATUTE OF LIMITATIONS IN LITIGATION

When people are unfortunate to have an accident which causes injury to them resulting from a third-party incident, they often wait and see how the injury is progressing before consulting a solicitor to see if any action should be taken. Some injuries can be dormant only to arise at a later stage. The risk here is that unless they take legal action within two years of the accident, they will be statute barred. That means, in the vast majority of cases, it is too late to take legal action for injury caused by the accident.

So, Can Anything be Done if Statute Barred?

The rule is the personal injury case must be commenced within two years but there are exceptions to this. 

This is where a solicitor's advice is particularly important. They will assess the particulars of the case and see if it falls within any of the exceptions where proceedings can be initiated even outside the two-year limit.

Personal Injuries Assessment Board (PIAB)

Many personal injury cases are determined before the PIAB but if your case is statute barred, the PIAB will decline to take your case. The PIAB is the first place where personal injury claims must be applied for in Ireland. 

The Statute of Limitations, on the face of it, would disallow any personal injury case to proceed if outside the two-year limitation period therefore it is critically important to ask your solicitor for advice on whether your case could fall into one of the few exceptions. Speed is of essence but try to avoid this by having an early discussion with your solicitor if you suffer any injury which was caused by a third party.

First Award Under New Damages Guidelines. 

After lengthy lobbying by insurance companies, who were charging higher premiums to cover larger PI awards in the courts, the government introduced, in April 2021, new Guidelines for the courts in their determination of their awards of damages. 

In a High Court case in July 2022, the judge was tasked to decide the level of damages for a plaintiff girl who was injure d following an accident but who developed Post Traumatic Stress Disorder (PTSD) for several months thereafter. The case was one of the first PI cases where the court had to decide on the damages by applying the new Guidelines. Some commentators were expecting the eventual award to be much reduced, but the actual award was higher than expected. 

The 14-year-old girl was struck by a car and knocked down. All parties agreed that she had suffered from psychological injuries after the accident, and these were diagnosed as PTSD. She also had some minor injuries and a small scar below her buttock. 

However, her main injury was PTSD, and this finding was supported by her parents and schoolteachers. She suffered from flashbacks, nightmares, panic attacks and poor attention at school resulting in a decline in her overall academic performance. She had received some professional counselling but would require more although she was progressing satisfactorily. 

The net issue at the hearing was the assessment of her injuries under the new Guidelines. The plaintiff maintained her injuries were somewhere between moderate and serious PTSD. The moderate type would result in an award of between €10K to € 35K while the serious version would result in a higher award between € 35k to €85K. Not surprisingly, the insurance company argued that her injury fell within the moderate category and should be valued at € 20k. 

The task of the court was to determine how the new Guidelines should impact on an award of damages. Importantly, it also noted that a court could depart from the Guidelines if the justice of the case requires but must set out concise reasons for doing so. 

While serious PTSD typically involved a disability for the foreseeable future, the moderate PTSD category envisaged that the plaintiff will have largely recovered, and any continuing effects will not be grossly disabling by the time the case comes on for hearing. 

The court was satisfied that the plaintiff’s PTSD fell into the moderate category but considering the negative impact on her schooling and Leaving Certificate prospects, it fixed an award at the top end of the moderate category being € 35k. 

The court also awarded her € 25k for her scar and soft tissue injuries which had largely settled.  This brought the total sum awarded to €60k. 

This case illustrates how a fear of much lower court awards following the new Guidelines appears to be misplaced. 

Lipinski (A Minor) v Whelan [2022] IEHC 452 

The Expert Witness – What is Their Role?

An expert witness is a person who has a recognised, specialist knowledge, a skill or experience in a particular area, such as doctors, dentists, engineers but not necessarily  confined to professionals as they can be experienced  motor engineers, mechanics,  plumbers etc.

Experts are usually asked for a written opinion which may not necessarily be used in a court case. The party seeking the opinion may decide, before or during the hearing  not to actually use the opinion.

It is important to note that the expert witness has no link or association with any of  the parties in the case. They are independent and are required to give an unbiased opinion. It is incorrect to believe that an expert witness is ‘on the side’ of the party calling and paying their fee. The essential  purpose of the expert’s opinion is to assist the court in their deliberation of the matters being argued by the litigants. 

Another purpose of calling expert witnesses in court cases is to assist the judge on subjects that might be outside the judge’s own field of knowledge or understanding. For instance, where a structure collapsed and caused damage and or injury, an expert could assist the court in giving their opinion on whether the structure was built in a proper and safe way.

The expert should confine their opinion entirely to matters within their own knowledge and not speculate.

Experts should be informed and up-to-date on their subject matter or field of expertise otherwise their evidence might be easily rebutted.  

Planning for the Future



As people get older, their legal needs may change with some requiring more updating than others. This is particularly so where a loved-one is showing signs of memory loss or Alzheimer’s Disease.

 The law relating to the elderly can be found in legislation that applies to individuals but there are particular sensitivities and urgencies which may have to be addressed and these  are best done under the supervision of a solicitor.

Safeguards need to be in place to avoid an elderly person being abused or duped into spending or giving money away where it is not necessary. Elderly people need to make decisions about their lives where,  for a variety of reasons, they may be having trouble coping.  Future planning measures  can avoid possible distress for the elderly and reduce costs too in addressing these matters sooner rather than later. 

Elder Care Planning

Some of the areas that should  be considered are:

• Making a Will
• Enduring Powers of Attorney
• Dealing with assets the person may have (shares, property interests)
• Equity Release Schemes
• Health and Personal Care Planning
• Insurance
• Financial planning
• Trusts
• Family Business succession. 
• 
  

Before embarking on any of the above measures in planning for the elderly, discuss it first with your solicitor and financial adviser.

Cyclist’s Award Reduced for not wearing Safety Helmet

A cyclist suffered a head injury which caused concussion and soft tissue injuries to her face, shoulder and arm when she was knocked off her bike by a truck. The cyclist, a restaurant server, lost control of her bike when a heavy sand truck had veered slightly to its left approaching traffic lights and brushed against her right shoulder. As the truck could not be traced the cyclist sued the Motor Insurer's Bureau of Ireland.

The Circuit Court judge found for the cyclist and awarded her €20,000 but as she had not been wearing a crash helmet at the time of the accident, the award was reduced by 20%. This reduction is attributable to the contributory negligence of the plaintiff herself. 

Contributory negligence is a principle of law whereby an injured party may have contributed to their own injury by acting negligently when confronted with apparent and known circumstances. The extent of the blame for an accident in which a person is injured is determined by contributory negligence.  Where the contribution by the claimant is high, the reduction will be high.

Lopes de Andrade Aquino v Motor Bureau of Ireland Circuit Court (Daly J) 25 January 2023. 

Endorsement Contracts

Commercialisation of sport in Ireland is big business; golf, football, horse racing is a few examples where sponsorship plays an important role. As individuals within a sport become famous, many negotiate commercial deals for themselves, and these are termed ‘endorsements.

An endorsement arises where a company, in seeking to promote their brand, will pay an individual to be linked or associated with their brand. Here a sporting star, like a world class soccer player or golfer, will associate with the company’s brand to promote their products. The sports stars get paid for this exploitation of their branding or endorsing of the company’s products.

The sports stars can endorse the products by way of TV/Online/print advertising or by wearing or using the company’s products.

Endorsement Agreements

The company and the sports star will enter a legal agreement which will set out terms such as:

1. The term or length of the agreement

2. The payment to be made to the sport’s star and frequency of payment

3. What type of promotional work is to be provided by the sport’s star

4. Exclusivity, that is, prohibiting the sports star from also promoting a competitor's

products.

There will most likely be a ‘good behaviour’ clause whereby if the sport star is involved in

conduct that would bring the brand in to disrepute, that the company can terminate the

endorsement agreement immediately.

For individuals, clubs and sponsoring companies, it is vital to get legal advice before signing any such agreements. These can be complex agreements which often end up in disputes and litigation and no one should enter them without independent legal advice.

Challenge to New Guidelines Dismissed by High Court; Lower Damages Are Here to Stay.

High level awards were, in recent years, feeding into higher premiums and the government was under pressure to introduce changes.  In March 2021 the Judicial Council, essentially all of the judges, passed the new judicial guidelines under the Judicial Council Act 2019.  These provided for much lower awards in PI cases and one claimant who had been told her case was worth up to € 34,000, but who was only assessed at € 3,000 by PIAB, challenged the new guidelines and related legislation.   She applied to PIAB before the new rules took effect but was assessed under the new regime.

The plaintiff complained that the 2019 Act interfered with judicial independence and that the guidelines should not be retrospectively applied to her. She claimed her case should be assessed under the old rules as she applied to PIAB some years before the new and reduced awards came into force.

The court looked at section 90 of the 2019 Act and found that the court must consider the level of damages awarded in the state and other jurisdictions, principles for assessment and the need to promote consistency in the level of compensation for personal injury claims.

As for the issue of independence of the judges, the court held that existing legislation allowed a court to depart from the guidelines where reasons were given by the judge and this did not represent any substantial change to the current system under the Book of Quantum where it was desirable that a court should refer to its provisions.

As to the plaintiff’s case being undermined by retrospective rules, the court found the plaintiff had the right to have damages assessed in accordance with the law applicable at the time of assessment but did not have a right to any specific sum contained in the Book of Quantum.    The reduction in awards, which was in keeping with public policy, did not amount to an “unjust attack” on her rights as she had claimed.

An application to PIAB was different to an assessment, and that could only be arrived at following the furnishing of all relevant information to the PIAB assessor. In this case the claimant had delayed sending all her Xrays to PIAB.

The court concluded that the guidelines were now valid as a matter of law and it found that PIAB had correctly applied the new guidelines to the claimant’s case.  Her application for judicial review of the new guidelines was therefore refused.

Delaney v the Personal Injuries Assessment Board & Others [2022] IEHC 321

Selling up: You need not only your title deeds but also a good solicitor!

1. Your title deeds are like your log book; they are proof you own your house and there are no hurdles to selling it on again. However, there can be many documents, maps and other paperwork that make up your full title deeds and losing them can cause a lot of grief as well as additional costs.|
   
   
2. You can also have problems that arise within the title deeds where wrong or incomplete documentation is discovered and this usually causes delays and further expense to rectify. In many cases, it takes skill and experience to read through a long and convoluted title history and, where necessary, to draft any rectifying documents that may be required. Mistakes made even years ago can potentially render a house unsaleable.
   
   
3. For centuries there have been two different systems in Ireland which record your title deeds as proof of your ownership and these are: 
   (a)   The Registry of Deeds. Since the 1700s, the Registry of Deeds records the existence – and therefore the effect- of various documents such as leases, conveyances and mortgages that typically transfer or affect property.
   (b)  The Land Registry. This is a more modern registry which simply confirms you are the owner and also provides a map of your property. It is a type of gold standard registration as you acquire one certificate of ownership rather than scores of old deeds and related documents which have to be traced back and read again.
   (c)  The Land Registry will gradually take over all registrations from the Registry of Deeds with increased computerization and will furnish a purchaser with a certificate of ownership, state guaranteed, not unlike the purchaser’s own log book for his car ! 
   
   
4. Role of your solicitor:
   Any solicitor who works most of the time on property matters is called a Conveyancer and his/ her work could involve apartments, farmland, the family home or a shopping center. They will be buying or selling property while a bank solicitor will be reviewing all documents and preparing mortgages to protect and secure the bank’s interest.
   
   A selling solicitor will draft up all the contract documents to include various conditions as to planning matters or rights of way etc. essentially to protect the interests of the seller.
   
   A purchasing solicitor will have to review all these documents, raise queries on the title or related matters and draft the deeds by which the title will be fully transferred to the new purchaser again to fully protect his own client’s interests.
   
   The transfer or conveyancing of property is a field where, unfortunately, many disputes can arise even some years after it has been completed. The newspapers are often full of court reports about disputes over boundaries, maps, extensions, family inheritances, rights of way and a lot of other matters so retaining a competent and experienced solicitor is always in your best interests.
   

Contributory negligence applies where the injured party played a part himself in causing his own injury. A judge in determining an amount of damages for the injury incurred can reduce the award by the percentage the plaintiff contributed to the accident.

A defendant to a personal injury claim is permitted to claim, by way of defence, that the plaintiff contributed to the accident. An obvious example would be where a passenger in a car suffered injury as a result of the negligence of the driver but if the passenger did not wear their safety belt, then they contributed to their own injury and the damages award will be reduced. 

In general, a failure to wear a safety belt can reduce a motor accident claim by 25% but this is only a guide, a judge could reduce it even higher. But the failure to wear a safety belt would be seized upon by the defendant as a major defence. If for example, the driver reminded the passenger to put on their safety belt, but they did not do so, a judge could impose a far greater reduction in damages.

• Other common instances of contributory negligence can be found in:
• Delay in seeking medical attention
• F ailure to disclose all the injury symptoms when with the doctor
• Not wearing a safety helmet while cycling
• Failing to wear a high visibility vest
• Not have working lights on a bicycle
• Failing to take safety measures in sporting activities

When injured in an accident, which you believe is not of your making, discuss it with your solicitor but be sure to give correct information as exaggerated accounts could result in subsequent cases being lost in court with considerable legal costs being awarded against you. 

A 12-year-old boy who suffered a traumatic brain injury as a baby was awarded almost €10 million arising from a road traffic accident when he was just nine months old.

The boy was sitting on the lap of a person in the back seat of the car when the accident occurred. The car was driven by the boy’s late father who subsequently died from his injuries. The driver was uninsured.

The boy suffered a fracture to his skull, had brain swelling and was hospitalized. As he grew older it became clear he was missing developmental milestones together with problems with his gait and balance.

The case taken on his behalf was against the Motor Insurers’ Bureau of Ireland and the local county council.  The plaintiff claimed the council allowed the roadway to deteriorate and be of such an undulating nature that the driver lost control of the car and caused the accident. Liability was not disputed; it was before the court to assess damages. The court was told that a settlement of €9.75m had been agreed by the parties and the judge approved it.

O’Leary v Kerry County Council and MIBI High Court (Coffey J) October 2022.

A Dunnes Stores worker sought to lodge a complaint with the PIAB but was 10 months outside the two-year limitation period specified for doing so. 

The worker claimed that she was bullied and harassed in her workplace which led to poor health. She first visited her GP with her issues in May 2014. She decided to lodge a claim for personal injuries with the PIAB, but her application was not lodged until March 2017. This meant that she was 10-months outside the permitted time to lodge claims. The worker relied on her GP’s evidence which showed she was extremely upset, tearful and distraught and was diagnosed with mild depression. In 2016 she was admitted to hospital with a delusional disorder. She claimed because of her condition she could not bring herself to bring the proceedings within the time limit and claimed she should be allowed proceed under the disability exception. 

The court considered the issue of disability where firstly it had to be convinced that there was a disability issue to allow an exception. The court cited a precedent which stated that a person must be under a disability at the time of the cause of the action. The court found that while the plaintiff suffered from a psychotic illness from October 2014, however she was not diagnosed until May 2016. Unfortunately, this did not satisfy the Statute of Limitations and as   such, the court held that the proceedings should be struck out pursuant to the Statute of Limitations 1991, as amended.

This case shows that the plaintiff’s delay in lodging her application had cost her the loss of her claim and cost of the proceedings.

Johnson v. Dunnes Stores plc [2022] IEHC 580 

When seeking to register a trademark, it is of utmost importance that it is distinctive from other registered trademarks. A lack of distinctiveness is a common ground for the refusal of a trademark. Even if the trademark application is initially accepted for registration, it must then undergo a three-month period to allow any objections to the trademark to be lodged.

A recent example of a trademark failing on grounds of distinctiveness is the mixed martial arts star Conor McGregor who failed to register his name as a trademark in the EU after a Dutch company objected to his registration.

The governing body in Europe for trademarks is the EU Intellectual Property Office (EUIPO). This body upheld the objections of the Dutch company named McGregor IP BV. Conor McGregor’s company, McGregor Sports and Entertainment Ltd sought to register the trademark ‘Conor McGregor'. Conor’s company and trademark was for the sale of clothing, footwear and sportswear in the EU. The Dutch company designs, manufactures, distributes and sells mostly apparel and accessories under the ‘McGregor’ brand.

The EUIPO in their decision rejected Conor McGregor’s application of his trademark finding that there would be a likelihood of confusion between the two names. Conor McGregor’s agents denied that the two trademarks were similar. They submitted that they can be readily distinguished, and the average consumer would not believe that the goods of ‘Conor McGregor’ originated from the Dutch firm ‘McGregor’. However, their submission failed as the EUIPO did not believe their trademark passed the distinctiveness test and was easily confused with the objector's trademark. 

Property owners beware! Where a third party has continuously and without any challenge, occupied a piece of land or building for 12 years or more then the third party may attain a right over the land or property. To avoid this the landowner must take action (usually to evict the occupier) within the 12-year period. Failure of the property owner to challenge the trespasser or take such action, can result in the ownership of the property in effect being forfeited to the occupier of the land/property.

Action to be Taken

Whether it is a boundary dispute or any dispute involving the ownership of the land, speak to your solicitor and act on it without any delay to avoid any possible rights accruing to third parties by default.  

Boundary disputes between neighbours or farmers can fester and result in costly and protracted litigation. Unless resolved, it could also result in reducing the value of the property.

Before embarking on a row with a neighbour, check the deed records of the properties as these typically have maps attached. These can be found in the Registry of Deeds or the Land Registry. If the property is registered, then the exact boundaries should be clear. In some cases, where there have been a number of conveyances on the property adjoining each other, then the correct boundary will usually be visible on the earliest conveyance. If the boundary division is unclear, which can be the case and is unhelpful, then unless a compromise solution is found between the parties, a judge may well have to rule on their opinion of where the boundary lines are.

A complication can arise where there is a wall, hedge or stream where the border line is. Over time, these physical features can change or disappear adding a layer of confusion in determining the border. A professional surveyor would be best placed to determine the borders.

Boundaries between properties can exist quietly for years until one property owner decides to remove a hedge or erect a fence. When that happens, you usually find then the adjacent landowner objects to the fence or wall believing the land is in fact theirs.  

If the behaviour of a neighbour disturbs the quiet enjoyment of your home, there are remedies to resolve this. The obvious first step is to alert the neighbour of the disturbance they are making but if they continue then other steps will be required.

Unfortunately, resorting to having a solicitor’s letter be issued, will not be received well by the offending neighbour but if faced with the neighbour ignoring reasonable requests from making the disturbance, then there is no other option.

There is a procedure to bring a complaint to the District Court under the Environment Protection Agency Act, 1992, section 108 (3). Your solicitor will walk you through this and what will be required for the court hearing.

If, however, the neighbour causing the disturbance is a tenant, a complaint can be made to the Private Residential Tenancies Board. This would put the liability on the owner (landlord) of the property to ensure the tenant ceases the disturbances. Here, landlords can be ordered to pay compensation for the disturbances and to make sure the behaviour of the tenant stops.

The courts have ruled on cases of nuisance involving neighbours and the court will hear the facts and rule accordingly. If the nuisance was loud music the courts have set a standard where the level of the noise is beyond what is subjectively reasonable for a person to have to put up with. If the noise is prolonged or repeated to such a normal an average person should not be expected to put up with, then a court could find against the offending neighbour.

Dentists, like doctors, provide a medical professional service and are open to negligence claims where, as a result of their work, a person suffers injury. 

Samples of dental negligence are:

• Infection
• Nerve damage
• Poor appearance following cosmetic dental treatment
• Incorrectly administered anaesthetic
• Failure to properly diagnose dental conditions
• Failure to treat dental conditions effectively or timely
• Below standard root canal treatment
• Failed implants
• Extracting the wrong tooth
• Inadequate fillings
• Inadequate crowns
• Failure to manage tooth decay
• Failure to diagnose a serious condition 
• Failing to manage gum disease
• Removing too much enamel when fitting veneers
• Poorly fitted veneers leading to increased pain and discomfort
• Poorly positioned implants
• Incorrect use of whitening chemicals which can cause permanent damage to the gums and lips
• Poor orthodontics/failure to diagnose future problems

Some of the above are more serious than others though all are actionable.

If a claim is made against a dentist, the complainant needs to establish that pain and or injury resulted from the dentist’s treatment.

In many cases a complainant will need the opinion of an independent dental expert to express their opinion of the dentist’s treatment where the dentist disputes negligence. 

Dental negligence is quite technical and early contact with your solicitor is essential. 

If buying or selling an animal privately then caution is advised. ‘Caveat Emptor’ applies, that is, let the buyer be aware. The onus is on the buyer to be satisfied that the animal is fully fit for the purpose they have in mind. The sellers are not obliged to disclose any problems the animal has but they must not mislead the buyer. If the animal is advertised, there must be honest representation of the animal.



A written contract of the transaction is advised, and this should set out the terms of the sale or purchase. In the event of a dispute, without a written contract, it can be exceedingly difficult to prove what was agreed between the parties. If a vendor or seller is reluctant to commit the deal to paper, then it might be better to look elsewhere to purchase another animal. Verbal agreements are difficult to resolve whenever a dispute arises.

A contract will set out the terms of the service to be provided or goods to be sold; so it is very important that these are clearly set out and not stated in vague or ambiguous language. 

A breach can occur if one party fails to perform his duties as agreed in the contract or does something not agreed or is not fulfilling his obligations. There are exceptions to unfulfilled contracts as set out below. 

The question of liability then must be examined where there is a breach. The consequences of such a breach will determine the extent of the liability (damages) on the party at fault.

Here the contract and its terms will come under scrutiny. Was the contract legally enforceable? Was the contract executed correctly? What loss was suffered by the injured party?

A common breach, which can give rise to action for loss suffered, is the non-fulfilment of one or more obligations under the contract. However, the omission if minor may not be sufficient to declare a breach of contract by the offending party. The seriousness of the breach will depend on the terms of the contract and what impact the breach has in terms of damage to the injured party.

Where the breach is serious, the injured party can:

a)      Claim fundamental breach of contract

b)      Claim the contract no longer exists because the breach is so serious

Alternatively, the injured party could seek a court order of specific performance which compels the other party to fulfil the contract terms.

Defences to Breach of Contract

The party in an alleged breach can claim the breach is not as serious as claimed and offer to fix the breach/omission.

A party alleged to be in breach can claim in defence that the other party exerted threats or undue influence.

The contract could have been unenforceable such as in breach of public policy.

The contract may not have been properly executed.

Exercise of the Force majeure provision.  This clause is standard in contracts. It can excuse liability for situations that were unforeseen and as a result beyond the control of the contracting parties.

Lastly, a party may claim in defence that the contract was ‘frustrated’. This occurs where a supervening event occurs without the fault of either party, and for which the contract makes no provision. The event must so significantly change the nature of the outstanding contractual rights and obligations from what the parties could reasonably have contemplated, so as to make holding them to its stipulations unjust.  For example where a concert had to be cancelled because of the Covid pandemic.

When entering into a contract be sure to discuss it first with your solicitor to ensure it is a valid contract and not one that lands you in court.  

The Workplace Relations Commission heard an application where the property owner refused to accept Hap (Housing Assistance Payment).

High level awards were, in recent years, feeding into higher premiums and the government were under pressure to introduce changes.  In March 2021 the Judicial Council, essentially all of the judges, passed the new judicial guidelines under the Judicial Council Act 2019.  These provided for much lower awards in PI cases and one claimant who had been told her case was worth up to € 34,000, but who was only assessed at € 3,000 by PIAB, challenged the new guidelines and related legislation.   She applied to PIAB before the new rules took effect but was assessed under the new regime.

The plaintiff complained the 2019 Act interfered with judicial independence and that the guidelines should not be retrospectively applied to her. She claimed her case should be assessed under the old rules as she applied to PIAB some years before the new and reduced awards came in to force.

The court looked at section 90 of the 2019 Act and found that the court must consider the level of damages awarded in the state and other jurisdictions, principles for assessment and the need to promote consistency in the level of compensation for personal injury claims.

As for the issue of independence of the judges, the court held that existing legislation allowed a court to depart from the guidelines where reasons were given by the judge and this did not represent any substantial change to the current system under the Book of Quantum where it was desirable that a court should refer to its provisions.

As to the plaintiff’s case being undermined by retrospective rules, the court found the plaintiff had the right to have damages assessed in accordance with the law applicable at the time of assessment but did not have a right to any specific sum contained in the Book of Quantum.    The reduction in awards, which was in keeping with public policy, did not amount to an “unjust attack” on her rights as she had claimed.

An application to PIAB was different to an assessment, and that could only be arrived at following the furnishing of all relevant information to the PIAB assessor. In this case the claimant had delayed sending all her Xrays to PIAB.

The court concluded that the guidelines were now valid as a matter of law and it found that PIAB had correctly applied the new guidelines to the claimant’s case.  Her application for judicial review of the new guidelines was therefore refused.

Delaney v the Personal Injuries Assessment Board & others [2022] IEHC 321

The plaintiff was exiting a car park on Ushers Quay, Dublin, when the defendant driver rear-ended her. She sued for €60,000 personal injuries arising from the accident.

The plaintiff claimed that the impact on her car was like being struck by a bus. She claimed she suffered a soft tissue injury to her cervical, thoracic and lumbar spine and had a reduced range of movements in her sacral and cervical spine. In cross-examination, the plaintiff said that she had received €40,000 compensation from a car accident in 2013.

The plaintiff told the presiding judge that she attended her GP nine days after the accident and he had prescribed anti-inflammatory medication, muscle relaxant and pain killers. He had also recommended exercises and that she undergo physiotherapy treatment.

The defendant told the court that she had only been travelling at 4 miles an hour at the time of the accident. When the incident occurred, she got out of her car and apologised to the plaintiff, but she was shocked when she received the summons from the plaintiff. 

Expert witness evidence stated that if the defendant’s car was travelling at only 4 miles per hour it would have been highly unlikely that the plaintiff suffered the injuries claimed.

Further, it was noted that the plaintiff’s sister was also in the plaintiff’s car at the time of the accident and had suffered no injuries, nor was she present in court as a witness.

Counsel for the defendant showed covert video coverage of the plaintiff allegedly walking without difficulty along Howth Hill. The defence claimed that the plaintiff could not have suffered the injuries claimed in such a low impact collision as had occurred.

 The court also heard from an engineer that while there was no obvious exterior damage to the rear bumper of Duffy’s 2008 Renault Megane, the support bars behind the bumper had been damaged. The plaintiff said she had received a repair estimate of € 677.60 but did not in fact have her car repaired.

The judge dismissed the plaintiff’s claim commenting that the plaintiff looked to be very agile in the video.  He said the impact was minimal and was of the opinion that the claim was opportunistic.

Duffy v Dowling Dublin Circuit Court (Judge James O’Donohoe) July 2022.

Insurers can’t use the Statute of Limitations as a Defense if they have already Admitted Liability

There are strict time limits for applying to the Personal Injuries Assessment Board (PIAB) and for issuing proceedings in personal injuries cases. If you make an application to PIAB later than two years from the accident date, your claim will be rejected. In certain cases, the courts will make an exception where it would be patently unfair to do otherwise.

In a recent case before the High Court, the defendant insurer was not allowed use the Statute as a defense because it had admitted liability and offered settlement negotiations some months before the time limits had expired.

Following a work injury, the plaintiff’s solicitor engaged with the company insurers who asked for a medical report and admitted liability. There were some delays in furnishing the medical report.  The insurers subsequently messaged the plaintiff’s solicitors and promised on receipt to get the case settled.

An application was filed with PIAB in December 2015 just two days after the two-year limitation period. Some days later the insurers contacted the plaintiff solicitors about the case but made no mention of using the Statute as a defense.

Unfortunately, later in December 2015 the insurers, now aware of the PIAB application, indicated they would be using the Statute defense to oppose the claim. The plaintiff’s solicitor then issued proceedings shortly after but lost the case in the Circuit court where the judge found it was indeed statute barred. An appeal was taken to the High Court claiming the insurers could hardly use the Statute as a defense as they had already admitted liability.

The judge in the High Court commented on the frequent attempts by the insurer to settle the case on inspection of the medical reports.  The insurers must have been aware the claim was close to the two-year limit, but they never made any argument about this. In addition, there had been an explicit and unconditional admission of liability in the case.

The judge found that all the repeated contacts from the insurers gave the plaintiff solicitor comfort that the Statute was not of any particular importance in this case.  The insurers had actually indicated a willingness to settle the case promptly and the plaintiff solicitor understood that liability was never an issue due to their admission of liability.

Essentially, the judge looked at the insurer’s conduct and held it would be totally unfair to allow the insurers to rely on the Statute as they had lulled the plaintiff’s side into a false sense of security that the Statute was not a factor in this case.

The judge allowed the appeal and found the defendant insurer was not entitled to rely on the Statute.

Tsiu v Campbell Catering Company T/A Aramark Ireland [2022] IEHC 391

MICRA REDRESS SCHEME

Improved Offer

Even people not affected at all by Mica problems, will certainly have been moved by the plight of house owners, particularly in some western counties, whose homes have been devastated by Micra, the latest building blight. A large amount of homes will have to be demolished and rebuilt as they are effectively beyond repair. Most of the occupants of these houses, the majority of them family homes, tend to have outstanding mortgages on them so borrowing large sums again to repair or replace their homes is not a runner.

The initial compensation scheme offered by the state to those affected came under fire as most house owners felt it was totally inadequate. Recent surges in the cost of building materials and labour have only highlighted their difficulties and calls for an improved scheme became more strident.

Legislation is now being drafted to provide for an improved scheme after cabinet approval. The new measures, which have a rather long winded title “ Remediation of Dwellings damaged by the use of Defective Concrete Blocks Bill 2022” is now to include additional counties of Clare and Limerick. It will provide for 100% grants of sums up to but not exceeding € 420,000 per dwelling. The total cost could amount to €3 billion.

In addition the government has allowed a sort of pre-legislative screening of the Bill to take place to involve the various stakeholders such as the Mica Action Groups which represent nearly all of the affected homeowners. The moves will be specially welcomed by those most severely affected who, at one stage, were afraid of losing their homes altogether if sufficient redress was not provided.

COMPANY LAW

Annual General Meetings

The 2014 Companies Act requires companies to convene an Annual General Meeting. This is a regulatory requirement. The requirement is that the gap between each AGM is 15 months and must take place within 9 months of the financial year-end of the company. There are though two exceptions to this requirement:

1. Where a company holds its first AGM within 18 months of its incorporation, it does not need to hold an AGM in the year of its incorporation or the following year.
2. Where a written resolution dealing with all matters to be considered at the AGM is signed by the company’s member(s), that are entitled to attend and vote at the AGM before the latest date for the holding of such AGM.

In smaller companies (b) is useful to save time and expense of convening the AGM. But it should be noted that while this option is available to all private companies limited by shares, it is only available to single-member DACs, PLCs, CLGs and unlimited companies.

Failure to Convene an AGM

Careful attention should be made to this as under the Companies Act, any company or officer of the company who fails to hold an AGM can be found guilty of a Category 3 offence under the Act and could be fined up to a maximum of €5,000 or imprisonment up to six months or both. However, scary as this appears, it only applies where the company or officer of the company fail to comply with a direction from the Office Director of Corporate Enforcement (“ODCE”) in relation to the holding of the AGM.

The convening of the statutory requirement might appear a nuisance for small companies, but it is worth making the effort in order to stay compliant with the Companies Act.

LITIGATION

General Damages and Special Damages Explained

When taking a personal injury case resulting from an injury, if successful damages can be made under the headings ‘General Damages’ and ‘Special Damages’.

General damages are awarded for the actual injury suffered as a result of the accident such as, pain and suffering while special damages compensate for expenses incurred or losses arising a from the accident such as GP fees, hospital charges, scans, medication, taxi fares, loss of wages etc.

Where the accident caused the injured party to lose wages, these can be recovered under special damages. If the injured party was in receipt of social welfare support during the time off work, these payments will be deducted from the amount awarded. 

It is important to keep a record of any such expenses incurred and proof of these by way of actual or copy receipts.

Every case is different so it is difficult to estimate what special damages could amount to, but your solicitor will take into consideration the following:

• Past, current and future medical expenses
• Loss of income to date
• Future loss of income if appropriate
• Travel expenses
• Parking fees at doctors/hospital

Medical Injuries

This is what the injured party suffered resulting from the negligence of the party responsible. The categories that are common are:

• Physical pain
• Mental pain/stress
• Pain & suffering likely to continue into the future
• Physical impairment
• Inability to perform functions that could be done prior to the accident
• Quality of life reduced
• Reduction of mobility

These are general guidelines; cases will differ, for example, a model where there is disfigurement on the face would receive greater damages as their career could be ended by the disfigurement.  

PERSONAL INJURIES

Workplace Accident

An information technology executive sustained dental injuries to her front teeth when she walked into double plate see-through glass doors in her former workplace. On impact the plaintiff was bleeding from the mouth, broke two teeth and fragments of them fell onto the floor. From the impact the plaintiff suffered significant shock and distress.

As a result of the accident, the plaintiff sustained fractures to her four upper front teeth and nerve damage resulting in two of them turning black and she had to have the four crowned .

The accident occurred when the plaintiff was walking to and from her car loading a computer and other items outside the defendant’s offices and she walked through the glass door which she had left open but on her final journey the door had somehow been closed, and she walked straight into it.

The defendant pointed out that the doors had previously contained plain frosted strips that had been removed prior to the accident in preparation for the installation of new frosted strips bearing the company’s logo.

A forensic engineer gave evidence saying that the only reasonable explanation for the accident was that she had not seen the closed door due to a moment of inattention on her part. 

The judge commented on the risk that plain see through glass doors have even with warnings but while it is not possible to eliminate the risk, he added that  it is possible to mitigate and guard against it.

The judge said despite the lack of markings on the door at the time of the accident, that the plaintiff had to bear some responsibility for the accident and measured that  contributory negligence at 35%.

General damages were assessed at €17,500 together with €4,220 for dental work to date and €3,960 for future dental treatment.

Taking the plaintiff’s contributory negligence into account he awarded her a decree for €16,692 and her legal costs.

McDonald v Brightwater Solutions (I) Ltd Circuit Court (Judge Dara Hayes) 22 March 2022.

Houses or Apartments

When you purchase a house, you get freehold title to the property, and this means you own it outright. But with apartments, it is usually a long leasehold, typically for 999 years, where the lease is the primary title to the property. The lease mechanism is used for apartments because it allows the developer/ management company owner to bind the purchasers to carry out or perform certain obligations as to use, upkeep or payment of service charge typically by way of covenants. 

All of the purchasers in a block would contract to take a share in and effectively take over the management company in all the common areas of the complex such as the gardens, car park, corridors, roof and so on.  The end result is that the purchasers will end up as individual owners of the apartments while the common areas will ultimately be owned by the management company which in itself is owned and controlled by the owners. 

The management company is important because it is their responsibility to maintain the grounds, common areas etc of that apartment property and to insure the block against fire. 

If considering purchasing an apartment, your solicitor can explain the lease and go through all the details of it. Some apartments will have rules in regarding to the keeping of family pets, noise, tidiness etc. There is considerably more documentation with apartments and duplexes than with houses. 

Service Charges in Apartments

The Management company will specify a charge for running and maintaining the common areas shared with other apartment occupiers, this will include a share of insurance cover required in running and maintaining the apartments. The managment company should also, more importantly, provide for a contingency fund ( or a "sinking fund reserve " ) in case substantial repairs have to be carried out to the roof , for example, some years down the line. 

Before purchasing an apartment, it is especially important that you ask your solicitor to explain everything and preferably have a surveyor or architect check it out to avoid unpleasant financial or other surprises after the purchase has been completed.  

When Wills are disclosed to family members, occasions can arise when people felt they have been left out or unfairly treated. There are ways under law to address this and challenge a will.

Where a person expected to be a beneficiary but was  excluded, it is vital that you consult your solicitor to be advised whether you have a legitimate case to challenge the will. This is very important as there are timeframes within which claims should be made.

Common grounds to challenge a Will are:

• The validity of the Will
• How the Will was made
• Whether the testator (person making the Will) was ill and was fully aware of what they were doing ; this is the mental state of the testator at the time of making the Will
• Whether there was pressure by others for the Will to be made
• Whether beneficiaries of the Will unduly influenced the testator
• Whether a beneficiary wrote or typed the Will or was a witness to the will 
• Whether the provisions of the Succession Act, 1965 were fully followed in providing  for a spouse and or children

Validity of Will

This is the basic test of any Will. The Will must be (i) in writing (ii) signed by the testator (iii) there must be two witnesses at the time the Will is made and signed (iv) the witnesses must not themselves be beneficiaries under the Will (v) the testator must be of sound mind at the time the Will is made and understand what he/she is doing.

Any of these grounds can be relied upon to challenge a Will.

Mental State of the Testator

This is a common reason to challenge a Will particularly where the testator was an elderly person. Where a person has a medical condition which can affect their capacity to understand what is happening, but their relatives want a Will to be made, this is still possible under strictly controlled circumstances. For instance, where a person is in hospital or a nursing home and drifts in and out of mental awareness, a doctor can advise a time when the testator fully understands what is happening.

To succeed under this challenge a court will apply the following test:

• The testator must fully understand what they are signing and the consequences of the will
• Understand the assets the testator has which are being gifted away and the effect of these bequests

Undue Influence

Undue influence is where a person puts pressure on a testator to make a Will and where the person applying such pressure benefits  under the Will. Under this challenge, legal advice should be sought as soon as the suspicion becomes apparent. Proof of such pressure needs to be provided. The burden of proof of showing the testator was pressurised into making the Will lies with the party making the challenge.

Spouse and Children of the Testator

The law is very clear on the rights of spouses. The spouse has a legal right to a share of the Will whether the Will provides for this or not.

A child who might feel that they received less than other siblings can make a Section 117 application on the grounds that the Will does not make proper provision for them.

Before initiating such a challenge here it is strongly recommended that a challenger discusses their claim with their solicitor before embarking on such a claim.

Babies ,when born, can have minor injuries which may not necessarily result in litigation but among the more common injuries are bruising, swelling and fractured bones. Injuries in themselves do not give rise to litigation unless negligence can be established on the part of the doctor or hospital involved.

To establish negligence, evidence must be provided which shows that the injury could have been avoided. This evidence is normally provided by an expert witness who examines the procedure carried out and explains how, if done differently, the injury could have been  avoided. However, these cases can be complex, and no two cases are the same. A judge, on hearing the evidence of two expert witnesses with opposing opinions, has to make a ruling which, in essence, depends on how convincing the experts are in their opinions. Such cases are decided on the balance of probability. 

Taking the advice of your solicitor is vital in these cases and the sooner you consult with them the better the outcome will be. Delay in proceeding with a claim can harm a case as, over time, peoples’ memories fade and their recollection of events will be nowhere as precise as in the time period following the birth.

Independent medical examination of the baby is crucial for a judge to determine any long-term injury to the baby as a result of the injury where negligence has been proved.

Many of these cases are settled out of court but to reach that stage you need to have your case very well prepared, and all of your medical experts committed to attending court on the day of the hearing.

Your solicitor will guide you on all these matters where they have taken full instructions from you and believe you have an actionable case. 

In a recent High Court case, the judge refused to remit a debt recovery action to the Circuit Court as he believed an important point of law arose which could only be adjudicated on by the High Court. 

The plaintiff, who purchased the Ulster Bank’s interest in the loan, sought to enforce a lien in respect of the debt and claimed the lien was properly registered on the Defendant’s lands.  However, the Defendants argued that the lien was not validly registered as the Registration of Deeds & Title Act, 2006, required that any such lien be registered before 31 December 2009.   They pointed out that the plaintiff’s lien, in this case, had only been lodged for registration on 31 December 2009 and was therefore invalid. 

The judge felt an important point of law arose as to whether it is sufficient for the purposes of the Act that before 31 December 2009 the holder of such a lien merely has made an application to the land registry for registration of the lien as a burden or whether the application for registration should be fully completed before 31 December 2009. 

The Defendant was indebted to the plaintiff for a sum in excess of €300,000 and it was important for both parties to leave the issue for the High Court to adjudicate on  as its conclusion would determine which one of the litigants would succeed. 

Promontaria ( Oyster) DAC v Michael Kean  [2021] IEHC 796 

The plaintiff, then a child of 18 months, was taken by her mother for hearing tests to the HSE audiological services and was told her hearing in both ears was normal. The plaintiff did suffer from hearing loss and when she was 24 years old sued the HSE for  damages based on the errors and delay in the diagnosis of her hearing loss.

Later the plaintiff was brought to a private audiologist who, on examining he, found that there was significant hearing loss in her right ear and some loss in her left ear.

It was submitted to the High Court that the delay in the initial assessment and subsequent problems in her treatment led to significant speech problems incurred by the plaintiff. Her claim was that the HSE failed to properly diagnose her hearing condition at an early stage which caused severe impairment to her hearing in later years. 

In 2002 the plaintiff had follow-up private audiological services tests which found there was a moderate to severe loss of hearing in her right ear. Then in 2003 the HSE retested her and found mild hearing loss in the right ear.

After a hearing aid was applied and further testing carried out, it was confirmed that the plaintiff had severe loss of hearing in her right ear and mild loss in her left ear.



The plaintiff has had several hearing aids, but it has not entirely resolved the problem and left  her with an inability to hear well.

It was submitted to the court that the plaintiff had suffered due to a failure of early diagnosis and the lack of any appropriate treatment.

The HSE had filed a full defence claiming also that her case was statute barred but the court rejected those arguments. The HSE offered a settlement after mediation and the High Court approved a settlement figure of €850,000. The judge said it was a complex case of causation but was satisfied with the settlement.

Healy v Health Services Executive High Court April 2022

Start up businesses will look for a short term lease but most established stores or offices will have longer leases up to 20/25 years. 

It is important these leases contain a Break Clause which allows the tenant (and sometimes the landlord too) an option to break or terminate the lease after 5 or, more typically, 10 years and  effectively hand the premises back to the landlord. 

It is vital the store owner or office tenant gives his landlord the requisite 3-6 months notice under the Break Clause that he intends to invoke its provisions. It will be difficult for any tenant to diary this for action in 5 or 10  years  time,  but if a busy tenant forgets about the Break Clause or gives his landlord less than the required notice he will find all his entitlements  could disappear and he cannot terminate the lease early. 

To avoid this pitfall, any tenant of a shop or office should ask his solicitor or agent to diary ahead the date and timing of this break option.

Any tenant who uses the Break Clause will have to pay any rent and service charge, including arrears, up to date of service of notice.   In some cases, depending on the lease provisions, the tenant may also have to pay a premium or once off payment for the right to break the lease. 

A tenant may also be liable for necessary costs of repair ( excluding wear and tear )  to the premises before they are handed back to  the landlord for re-letting.   So before a tenant exercises this Break Clause, he should be aware  that rent, service charge, premium and possibly  extra costs of repair may also have to  be paid by him on the same date. 

So any tenant should be careful not to throw away his entitlement to choose to terminate his lease earlier than expected but at the same time be mindful that handing the lease back to his landlord may incur some additional expense.  

Rent Review  - Avoid Taking on old leases! 

A lot of shops are vacant now and will be advertised for letting over the summer.

Many of these stores will have old leases in place and could be offered to a new tenant by  way of Assignment of the lease to the new party. 

This should be avoided at all costs and a prospective tenant should ask for an entirely new lease from the landlord if at all possible. 

Why ? Because an old lease will invariably contain Rent Review clauses under which any review of rent can only be upwards.   Under an old lease, the rent can be reviewed and fixed at the same rate as the old rent and therefore the rent remains static.   However, it cannot be reduced even if market conditions suggest otherwise. 

A store owner who took over an old lease could, all too easily, be paying double the rent than a neighbouring storeowner who was granted a brand new lease with a rent reflecting today’s more challenging conditions. 

These changes came in to effect in February 2010 when “Upwards only” rent review clauses were abolished.  After this date, all new leases must contain the more tenant friendly clauses under which the reviewed rent may  of course be increased but also  under which it be decreased  to reflect market conditions.  

Purchasing a Business? The importance of Due Diligence 

Purchasing a business can be a daunting task and also a huge risk, as many businesses appear healthy while huge liabilities wait to be uncovered. 

Therefore it is essential that before reaching an agreement a thorough examination of the legal, commercial and financial aspects of the company to be purchased (or ‘target business’) are carried out so that an informed decision can be made. 

This examination is referred to as ‘due diligence’ and is generally carried out by the purchaser’s accounting and legal advisors.

In any due diligence investigation, it is imperative that a thorough accounting review takes place led by an experienced financial advisor. This will involve reviewing audited accounts and future projections as well as examining the company’s tax affairs.

The accounting review will take place alongside an investigation into the target business’ legal obligations. 

This will involve your legal advisor conducting a review of all employment contracts, distribution agreements and all other legal documentation pertaining to the company so that a full picture of the company’s rights and liabilities can be made. 

Your legal advisor should also examine any property held in the target business’ name. These enquiries should be as stringent as if it were any property transaction, as in most cases it will be unsatisfactory to rely on any warranty given by the seller as part of the purchase agreement. 

Due diligence is usually completed by way of a checklist by the purchasers’ legal advisors, made by compiling a ‘due diligence report’. 



Compiling an extensive due diligence report is the most effective way to ensure that you have minimised your risk and maximised your chances of success when purchasing a new business, allowing you to make an informed decision before agreeing to the purchase. 

The Genuine Article or Not ? 

If your Will is valid, then your estate will be administered by your chosen Executors in accordance with your wishes. 

 However if, for whatever reason, your Will is held to be invalid, then you will be considered to have died intestate (effectively without a will), meaning your assets will be distributed according to the Succession Act 1965.

A Will is only valid if it meets all of the following requirements:

• It is in writing
• The testator (the person making the Will) is at least 18 years old
• The testator has adequate mental capacity to make a Will
• The testator signs the Will in the presence of two witnesses
• The two witnesses then sign the Will in the presence of the testator
• The two witnesses do not benefit under the Will (if they do, their gift will fail, although the rest of the Will remains valid)

Failure to comply with these requirements will inevitably invalidate your will. 

Some examples of why a will ends up invalid? 

Typically, a testator may not realize his/her Will is invalid and so the problems get passed on to his family subsequent to his/her death when the Will is not upheld, and this can lead to disputes and costly litigation. 

In many instances simple mistakes regarding the execution of the Will can render it invalid.  For example, the testator did not sign it in front of two  witnesses who were present  with the testator  at the same time. 

A Will may also be challenged usually by family who either inherit or perhaps, more typically, fail to inherit under the Will.  A claim can be made that the  testator did not have adequate mental capacity when making the Will, or  perhaps was put under pressure or under undue influence by some family members.  After a court has heard evidence from all sides it can invalidate the Will in certain circumstances. 

How can I avoid all that ? 

Make sure to give your solicitors full instructions and comply with all his / her requirements as to properly making your will.  If you feel some of your family may contest the Will and allege you lacked  capacity to execute it properly or were pressured by one family member to favour them, then arrange to see your GP and have him certify that you are fully compis mentis on the date of signing. 

Avoid DIY Wills which result in too many problems afterwards arising from poor draftmanship and lack of clarity. Solicitors charge a modest amount for doing most family Wills and they can also confirm that you were of sound mind when signing  the Will, should any issues arise subsequently. 

What happens to my estate if my Will is invalid?

 If your Will is declared invalid, you are deemed to have died intestate and your assets will be distributed under the provisions of the  Succession Act 1965. 

The Act creates an order or ranking of succession amongst your remaining relatives. Your spouse or closest blood relations stand to receive the majority of (or all of) your estate. These relatives could be your children, grandchildren, parents, siblings, or nieces or nephews. If you do not have a surviving spouse or any living blood relations, your estate will go to the State.  To avoid such an eventuality – you should arrange and execute a valid Will with your family solicitor as soon as possible; it can always be updated or revised  again at a later date. 

Will or No Will? What are the Consequences? 

1. Making a will is the only way you can be completely certain that your wishes will be carried out after your death.  You can choose to leave sums of money or property to whoever you like subject to some restrictions. If you die without making a will – called intestacy- then that decision is made for you under the Succession Act.
   You can appoint someone trustworthy and capable of handling your affairs after you die called an Executor. If you die intestate, one of your family will have to apply to the Probate Office to be accepted as your Administrator and this can easily cause family problems. 
2. Making a valid will saves time and money for those left behind. It invariably leads to a faster and cheaper administration of your affairs through a Grant of Probate. 
3. If you have young children, you should always appoint, in your will, what are called “ Testamentary Guardians/ Trustees” or  family members who will look after them, and their financial affairs, should you and your wife  die at the same time leaving them behind.  However, if you and your spouse died without having signed proper wills, then difficulties may arise between family members ending up in court.   
4. Making a will is the only way in which you can reduce any tax (CAT) payable by your beneficiaries by taking advantage of certain reliefs and allowances. 
5. Finally, it is nearly always the case that people making a will leave all their property to their spouse. On the other hand, if you die without making a will, your wife will only receive 2/3rds of your estate under the law if there are children. 
   

Establishing Negligence is Vital in Personal Injury Cases



The High Court considered a case where a pedestrian, who was struck by a car, had his personal injuries claim against the driver dismissed for failure to prove negligence.

Had the pedestrian followed the Rules of the Road the accident would never have occurred. 

The pedestrian was crossing a national primary road when he was struck by a car. The accident happened at around 8 pm on a September evening on a road with a speed limit of 100km/h.

The pedestrian suffered injuries and from panic attacks and insomnia. He sued for personal injuries, stating the collision was caused by the negligence and breach of duty in the care, management or driving of the defendant’s car. The defendant denied any negligence stating the pedestrian failed to keep proper lookout, failed to allow the car to pass before attempting to cross the road; walking into oncoming traffic; placing himself in danger; causing the accident by walking on the public highway; failing to wear appropriate reflective clothing; and failing to carry a torch “during hours of darkness”.

The judge referred to the appropriate application of The Rules of the Road and found on the balance of probabilities, that the accident occurred after sunset and shortly before dusk which was a period of notoriously difficult visibility for motorists. The pedestrian was not wearing suitable visibility clothing, the part of the road he was on had no street lighting and he crossed the road on a diagonal, with his face slightly averted from traffic approaching on the eastbound lane, despite there being a bend in the road to the east nor did he have the right of way in attempting to cross the road. Therefore, the court ruled that the actions of the pedestrian caused the accident and not any negligence of the driver. 

COMMERCIAL LEASES

Forfeiture clauses in shop leases:  A trap for the unwary. 

Disputes between landlord and tenant are very common and are usually associated with failure to pay rent or other breaches of covenant. Most rent disputes end up in court, but it can take years before a landlord can secure a money judgement against the tenant or, more importantly, get an order for vacant possession.  Many tenants, as a matter of strategy, delay the whole process even further. 

A lot of tenants, however, fail to realise that a landlord can use the lease provisions to forfeit their lease and re-possess the premises within two weeks or thereabouts all without the need for any court application or order. 

This forfeiture clause allows a landlord who is owed rent to demand his rent payment, usually within two weeks, and to legally re-enter the premises if he has not been paid by then.   If necessary, the landlord can even break into the premises to re-possess the property and change the locks. 

 A tenant can apply himself to court to stop the landlord’s action.   A tenant who has most of his rent arrears in hand will usually be allowed full relief by the court on handing over his rent payment. A tenant who has excuses only and no rent will likely lose his lease to forfeiture. 

Most landlords are willing to come to an arrangement with tenants;  however, some larger or institutional landlords prefer to take the forfeiture route because of its speed and low cost and particularly where there has been an ongoing saga of rent issues with the tenant. 

So a warning to all tenants:  If rent arrears are allowed build  up too much, be wary of the forfeiture clause in your lease, as the landlord can bypass the court and serve you with a 14 day notice to re-possess the premises in the event he is not paid his arrears. 

Any tenant who receives such a notice would be well advised to consult a solicitor promptly either to broker a settlement with the landlord or to prepare a court application to try and have the landlord’s actions set aside. 

Gift vouchers must be valid for at least five years under law 

The Consumer Protection (Gift Vouchers) Act 2019 gave legislative powers to protect consumers on gift vouchers.

There was previously no specific statutory regulation in Ireland of the expiry date or other terms of gift voucher contracts.

As well as the minimum expiry date, the law also bans any terms requiring the full value of a voucher to be spent in one transaction, preventing consumers using more than one gift voucher in a transaction, or requiring the name of the recipient to be provided by the purchaser.

Will or No Will? What are the Consequences? 

1. Making a will is the only way you can be completely certain that your wishes will be carried out after your death.  You can choose to leave sums of money or property to whoever you like subject to some restrictions. If you die without making a will – called intestacy- then that decision is made for you under the Succession Act.
   You can appoint someone trustworthy and capable of handling your affairs after you die called an Executor.  If you die intestate, one of your family will have to apply to the Probate Office to be accepted as your Administrator and this can easily cause family problems.
2.  Making a valid will saves time and money for those left behind. It invariably leads to a faster and cheaper administration of your affairs through a Grant of Probate.
3. If you have young children, you should always appoint, in your will,  what are called      “ Testamentary Guardians/ Trustees” or  family members who will look after them, and their financial affairs, should you and your wife  die at the same time leaving them behind.  However, if you and your spouse died without having signed proper wills, then difficulties may arise between family members ending up in court.   
4. Making a will is the only way in which you can reduce any tax ( CAT)  payable by your beneficiaries by taking advantage of certain reliefs and allowances. 
5. Finally, it is nearly always the case that people making a will leave all their property to their spouse.  On the other hand, if you pass away without making a will, your wife will only receive 2/3rds of your estate under the law, if there are children.  

Traffic Congestion a Ground for Concert Licence refusal   



Citywest Hotel had sought a licence to hold concerts at its venue. They argued to An Bord Pleanála that the events would attract an older demographic than other music venues. International promoter, Live Nations, had been lined up to manage the concerts. The council had previously declined the application and the license application was appealed to An Bord Pleanála. The reasoning the Council took in declining the licence was that there were concerns the volume of traffic caused  by those attending the concerts would cause congestion in the surrounding road network. Transport Infrastructure confirmed the view of the council.

An inspector of An Bord Pleanála told the appeal that they were satisfied that the proposal to convene concerts would be in accordance with permitted zoning however concerns over traffic congestion created a potential problem. It found that the proposed traffic measures  would not feature an appropriate provision for car parking to serve the development. Additionally, there was an absence of a safe and efficient means of facilitating drop-off, collection and taxiing journeys alongside other users within the hotel and leisure complex which would in the Board’s view lead to traffic congestion.

Cape Wrath Hotels v An Bord Pleanála

Exaggeration of Injury Rejected by Court

A pensioner was injured while travelling on a bus when it collided with another bus. The pensioner claimed €20,000 from the two bus companies for severe injuries to his neck. The accident happened in 2016 and he claimed that more than five years later that he still suffered intermittent burning pain in his right trapezius area.

 The court was shown CCTV of the incident when the collision happened where the pensioner was sitting on the back seat of the bus which showed a gentle swaying of his knees and lower legs at the moment of collision.

The judge was not satisfied that the impact was anything greater than a minimal grazing between the two buses and while the CCTV did not show the head or shoulders of the pensioner, who had his hands on his lap and not braced as he claimed, there was no evidence of sudden movement of any kind by other passengers. Medical evidence for the pensioner seemed to verify the incident shown on the CCTV and was not consistent with a muscle strain that he complained of for several years later. Accordingly, the judge dismissed the case.

The case was heard in the Circuit Court so the loss of the case will cost the pensioner plaintiff a sum of around €20,000. This is the risk people take when litigation is commenced. It is especially important when taking cases to solicitors that proof of injury can be established in a court and that the injury is directly linked to the acts of negligence complained of. 

Browne v Bus Eireann and Carrig Coaches Circuit Court (Judge Crowe) January 2022.

Delay in Prosecution will Defeat Action

Regardless of the merits of a defamation case, if there is inexcusable delay in progressing it,  a court will often dismiss the case. Such was the case in which John Brown, a brother of Dana Rosemary Scallon, issued defamation proceedings against the Irish Independent newspaper over an article it published at a time of a pending prosecution of Mr. Brown relating to an alleged indecent assault. Unfortunately the article referred to a UK news agency  which wrongly stated that a warrant had been issued for his arrest. In the defamation proceedings the newspaper denied the defamation, stating that the delay in the case prejudiced it and the balance of justice required the case to be dismissed.

In 2014 Mr Brown was cleared of all charges in relation to the indecent assault.

The defendant denied the article had been published falsely and maliciously. It submitted that Mr. Brown was an adviser to his sister during the Presidential Election campaign, that the article was published in good faith and in the public interest, so it was fair and reasonable to publish it.

The High Court judge ruled that this was a case of inexcusable delay. A jury should not be asked to look back on what was a matter of public interest 10 years ago. The balance fell in favour of  the defendant, and he made an order  striking out the proceedings.

Brown v Independent Newspapers (Ireland) Ltd High Court (O’Regan J) 12 October 2021

School trip nightmare 

A school trip turned into a nightmare for student Kelly Marie Jackson when the top story of her bus was sheared off in a collision with a bridge in the Mulhuddart area of Dublin in January 2019. 

Kelly suffered some soft tissue injuries to her hip and shoulder, including biting through her lip in fright just before the collision and also showed symptoms of post-traumatic stress disorder some months following the crash. 

Kelly and her friends on the top story of the bus realised the bus was about to collide with the bridge as the tunnel was too low and in fact the entire top story of the bus was sheared off in the crash like the opening of a tin can. 

She sued through her mother and as liability was not an issue, the hearing was to assess damages only and the court studied the medical reports submitted on her behalf. 

The judge was satisfied her injuries were genuine as was her post traumatic stress disorder but that she had recovered from the trauma very well.  He held that an offer of € 58,000 plus costs was a fair one and made an order on those terms. 

Kelly Jackson (suing through her mother Anne Davis ) v Eirebus ltd  High Court 2021.  

It is of utmost importance to obtain legal advice when it is intended to pass the family farm to the next generation.

There are many matters to be taken into consideration, some of which are:

• The financial stability of the elder farm owners on passing over the ownership of the family farm
• Decisions on what properties, assets are to be included in the ownership transfer
• Whether the elder farmers will have a continuing role in the farm management
• Clarity on who is the decision maker in the new arrangement
• Whether provision is to be made for other family members
• Where they are marital agreements/issues
• Where there are other family members, e.g. siblings, is the transfer fair on all family members? If not, and one or more children of the transferring parent are not happy with the new arrangement, they could seek redress through the courts, but this should be avoided.

So before embarking on drawing up plans for handing over the farm, seek legal advice, this will save time and in the end cost. 

Highway Robbery – The old liability rule returns 

A recent Court of Appeal judgment has confirmed that the ancient rule for determining liability for accidents on public roads has certainly not gone away. 

The old rule stipulates that if a local Authority repairs a road but makes a botch of it, they will be liable for any accidents caused by their defective work. This is called Misfeasance.

On the other hand, if a public road over the years simply falls into a state of disrepair, the Local Authority cannot be held liable for any accidents arising from the road’s natural state of disrepair over time. This is called non-feasance.

A 64 year old cyclist riding his bike down a public road came to a ramp right up beside a cattle grid but where, unfortunately, the ramp had worn away leaving a small drop or gap between the ramp and cattle grid.  He came off his bike suffering a serious ankle injury and sued the county council. 

In the high court it was accepted that the ramp/ grid had been in place for many years, but the county council had not interfered with the ramp in any way.  It was also not known when the ramp had deteriorated, presumably over several years. 

The court held that the county council was liable for the negligent construction of the ramp/ grid by its predecessor, Shannon Development.  It ruled that the county council should have been aware of the defect if it had carried out a survey on taking over the road from Shannon Development in 2004 and perhaps should have looked for an indemnity at the time. The high court ruled the county council was liable for injuries suffered by the plaintiff and awarded him € 113, 000 in damages. 

Not surprisingly, the county council appealed to the court of appeal who considered fully the old non- feasance rule in the 1902 Harbison case where the rule was established.  In that case, the court ruled that failure to maintain a public highway did not give rise to any action against the local authority.   However, if the local authority repaired a road but its repairs were defective, then it would be liable. 

The court of appeal held that the high court was wrong in finding that the county council was liable for an inherited defect from a predecessor in title.   It was an established rule that the public “takes the highway as it finds it” and it found there was no legal basis for the trial judge’s finding. 

The appeal court also held that a local authority was not bound in law to inspect a public road and ensure it was free of defects prior to it being formally taken in charge.

Finally, the appeal court confirmed that the Occupiers Liability Act 1995 was not applicable here as it was wrong to suggest the county council was in any way an occupier of the highway. 

The court allowed the council’s appeal to succeed and refused to award any damages to the unfortunate plaintiff. 

The judgments may have been complicated but the rule remains simple; cyclists and pedestrians: take care on the highways – you may not always be compensated out there

! 

O’ Riordan V Clare County Council & Another 19/ 10 /21 (No. 2019/305 [ 2021] IECA 267) 

Bad weather causing trees to fall creates additional headaches for farmers. The owner of the trees is the person liable in law for the damage it causes if negligence of the landowner is proved. Therefore famers and property owners need to monitor trees on their land. 

It is vitally important for farmers and property owners to check their lands for dangerous or falling trees. Failure to act on noticing a damaged tree could prove costly.

The law is governed by the Roads Act, 1993, section 70 which provides that the landowner or occupier must take reasonable steps to ensure that any structure on the land is not a hazard or a potential hazard to users of the public road. The key words are ‘reasonable steps’ and if this is shown that reasonable steps were taken then they are on safe ground. 

For farmers, hedges too can cause hazards to road users especially cyclists so regular maintenance assists in avoiding accidents and claims.

Farmers need also to be conscious of The Forestry Act, 2014, section 17 as it applies to the cutting down of trees.

This section states that it is illegal to uproot any tree over 10 years old, or cut down any tree of any age, including trees which form part of a hedgerow, without a licence.

The licence may include conditions such as environmental and replanting conditions.

I  f any of these issues arise, a call to your solicitor could save a lot of worry.

Workplace Accidents

Where workers are required as part of their job to use industrial machinery, the employer is obliged by law under the Safety, Health, and Welfare at Work Act, 2005 to provide workers with safe and properly maintained machinery. Where the machinery is dangerous there is an onus on the employer to provide training for the workers using it. For the employer, proper records of maintenance of the machinery are particularly important especially where there is an injury and/or claim.

Where a court is deciding on claims for injuries arising from faulty machinery, foreseeable accidents will usually work against employers. In this instance, the court could find that an accident might well  have been avoided so there is a high duty of care placed on employers where accidents are caused by faulty machinery. Employers should adhere strictly to maintenance of machinery and not cut any corners to save on costs.

A court will expect the employer to have acted sensibly and to have taken all reasonable steps to avoid accidents.

Any signs of faults on equipment should be brought to the employer’s notice immediately. If an employee notices a machine not working properly, he/she should immediately report this to the supervisor otherwise he/she may not secure any damages in the event of injury. 

Will of elderly dying person contested on grounds of testator being of unsound mind

A recent decision of the High Court considered an appeal from the Circuit Court where the will of a dying bachelor farmer had been challenged on the grounds that the farmer was not of sound mind when he made his will. The siblings of the farmer had claimed in the Circuit Court that their brother was not of sound disposition when making the will and the Circuit Court judge found this to be the case. A nephew of the deceased farmer, whom had been left the farm in the will, appealed the decision to the High Court.



The deceased farmer’s sister attended to the affairs of her dying brother when he was hospitalised suffering from cancer. She had asked a solicitor to visit her brother for the purposes of taking his will. The solicitor drew the conclusion that the farmer was too ill to make the will so he left. Another solicitor visited the farmer three days later at the request of the sister’s husband and this solicitor decided the farmer was of sound mind to make his will and did so.

There were suggestions that the nephew, who inherited the farm, had a physical row with the deceased previously and it was submitted this could have influenced the farmer in leaving the farm to him. The High Court judge dismissed this as being an influencing factor. The High Court judge over-ruled the Circuit Court judge and found that the farmer was of sound mind when making his will.

The judge in this case accepted the opinion of the solicitor in deciding the farmer was of sound mind when making the will but in the opinion of this writer, where the testator is in hospital that judgment should be made by the doctor, not a solicitor. However, if a solicitor calls to a sick persons’ home then the opinion of the solicitor would be correct. 

Contesting wills can be expensive and the costs comes out of the estate thus reducing its value, and it is best to be careful in these circumstances and if the sick person is under medical care, seek medical advice in determining the mental state of the person making the will. 

Right to Access Medical Records

It is quite common that people encounter difficulty in accessing their own medical records, but the fact is  that you have a legal right to them.

Hospitals and health care providers are obligated under law to provide  medical records to patients upon request and to do so in a timely manner.

Where there is resistance to producing medical records, a letter from your solicitor will remind the health provider or professional of their legal obligations.

If the patient requesting their records received care from the HSE as a public patient, the HSE are still obligated by law to provide the records upon request. In most cases there should be no charge but there are occasions where a charge will be made. However, there are exceptional cases where sensitive information will be disclosed and where access can be denied.

GDPR Rules

Under this EU legislation, healthcare providers are required to maintain accurate and up-to-date records. Where in the particular circumstances, the release of such records might pose a risk to the applicant's health, the record request can be denied.

Also the  Freedom of Information Act  provides for access to medical records except for private healthcare providers.

Private Healthcare Providers

Here you should look at the terms of the contract and if access is provided for then just cite the contract when making the request.

Court Cases

Where medical records are required for a court hearing, your solicitor can simply request them and, failing that, seek a court order requiring their production.

In Ireland, company directors must act in good faith, honestly and reasonably and in the interests of the company. They must also have regard to “the interests of the company’s employees in general, as well as the interests of its members”. As we set out below, there are serious implications where directors choose to ignore these duties.

Company directors are obligated by statute to always act in the best interests of the company, and this includes the company’s employees as well as its shareholders. Failure to do this will often result in the director being disqualified from holding office for lengthy periods. 

The High Court issued one of its longest disqualifications in a recent case (Kirby v Rabitte). In this case the director of the company kept no books or records, and the court drew the conclusion that the company was engaged in illegal activity. The court took a serious view of this and ruled a 14 year and three month disqualification on the director.

The court, in reaching its decision, took into consideration the need to protect the public from directors who have a history of leaving creditors unpaid, in this case the Revenue Commissioners.

In general, a core element in such cases is whether the director acted ‘in good faith’ . If a director can demonstrate to the court that they were indeed acting in ‘good faith’ then it is unlikely such proceeding would succeed. 

The Circuit Court considered an application for an injunction from a Wexford vet to prevent the buyer of land from using an entrance made in a ditch near his clinic. The purchaser of the land said the freshly made entrance to her 30 acres of agricultural land was legitimate as it was reviving an old gateway. Counsel for the vet applicant disputed this stating that planning permission would be required for any such development as the R720 road is more than four metres wide. While the purchased land had been owned by the applicant vet, it had been purchased from a receiver. It was claimed by the purchaser that a right of way leading up to the property had been blocked to prevent her gaining access. Affidavits were produced from two local residents stating there had never been an entrance where the new gate had been erected. It was submitted that the entrance posed a danger to traffic. Counsel for the purchaser stated that if there was no entrance to the property that the property would be ‘sterile’.

The judge was wary of consenting to the application for an injunction as it would in effect thwart the purchaser in accessing the land. In declining down the application he said he was leaving the matter to be resolved by the planning authority, Wexford County Council.

Rights of Way are usually contentious and it not uncommon for judges to defer a decision to another body. It is of utmost important when purchasing or selling land with a right of way, that legal opinion is taken first on the validity and implications of Rights of Way.

Browne v Cowman, Circuit  Court (Judge Martin Nolan).