Personal Injury Compensation
Posted: April 22nd, 2019
An agreement has been reached to to pay €3,500 in compensation to a man with a brain tumour who was asked to leave a licensed premises after he was mistaken for being intoxicated.
At the time the man was in the pub celebrating the end of rehabilitative treatment for his brain injury. He was also suffering from a bad limp due to his condition. However, staff of the premises mistook took this as a sign that he was drunk and asked him to leave, despite his best efforts at explaining the reasons for this.
The man, who was provided with legal representation by the Irish Human Rights and Equality Commission (IHREC), said that the incident had “caused him significant distress and embarrassment.” he made an application to the District Court for redress under the Intoxicating Liquor Act 2003.
Once an apology was issued, the matter was settled without court hearing after the licensed premises agreed to pay the man €3,500 compensation.
In addition to this, the management of the licensed premises have committed to attending an annual equality training course. There was no admission of liability required.
An IHREC spokesman said: “In addition, the licensed premises also agreed to provide a policy on treating all customers equally and making reasonable accommodation for customers with disabilities in line with obligations under the Equal Status Acts 2000-2018 and Intoxicating Liquor Act 2003,”
IHREC chief commissioner Emily Logan said: “As this case demonstrates, issues arising from brain injury should not mean you risk discrimination when out socialising. It is important that people providing services are trained and supported by employers in understanding the varied needs of their customers.”
She added that “the Intoxicating Liquor Act is acting as barrier for people in accessing justice when they face discrimination” because it says that they must take their case to the District Court, a course of action which necessitates legal representation. Ms Logan urged for these cases to be heard in the non-court setting of the Workplace Relations Commission in future.
Posted: February 24th, 2019
A four-year-old child has been awarded €45,000 compensation in relation to an accident she was involved in, in a Tesco store, when only at 20 weeks gestation in her mother’s womb.
The young girl, Siwan Stewart, was represented in the Circuit Civil Court court by barrister David K. McGrath who told Judge Eoin Garavan that the unborn baby girl, who is now just three months short of her fifth birthday, sustained injuries when her mother was struck by her shopping trolley which came to a sudden stop on a Tesco travelator.
Mr McGrath informed the Judge that Siwan’s mother, Elaine, crashed into her own shopping trolley when it halted unexpectedly on the travelator in Tesco’s at the Bloomfield Shopping Centre, Lower George’s Street, Dun Laoghaire, Co Dublin, in February 2013.
Presiding Judge Garavan said that this was the first time he had dealt with the injury of an unborn child and the sort of one which, to the best of his knowledge, had not come before the court before.
Mr McGrath told Judge Garavan that when Siwan was delivered in May 2013 it was noticed that she had haemolytic disease of the newborn, a sort of jaundice and had to be treated medically in a special unit for just under seven days. A consultant had linked Siwan’s condition to the travelator accident that involved her mother in Tesco’s.
Following her initial filing of the personal injury compensation action on her daughter’s behalf, Ms Elaine Stewart, of Claremont Road, Sandymount, Dublin was offered a travelator injury compensation settlement offer of €45,000.
The Circuit Civil Court was also told that Ms Stewart’s other daughter Adelaide, who was three at the time and had fallen and struck her head on the travelator in the same accident, has been offered a personal injury Tescos compensation settlement of €28,000. Mr McGrath was recommending that the Judge approve both offers.
Mrs Stewart made no claim herself in relation to her own involvement in the accident, she only claimed against Tescos on her own behalf but only on behalf of her children. Judge Garavan approved both settlements and referred to the two offers as ‘very good’.
Posted: January 23rd, 2019
A 36-year-old Chinese woman who sustained a significant head injury when she was involved in a collision with a bus as she was crossing a road despite the red light showing for pedestrians has settled a pedestrian accident compensation claim for €250,000 in the High Court.
Shu Zhang, who is once again able to walk but still requires full time care, sustained the brain injury in an incident where a Bus Eireann bus crashed into her at Aston Quay, Dublin in 2004. She took the legal action through her aunt Shao Ze.
Ms Zhang was knocked unconscious after she was thrown up into the air and landed on the ground close to the back wheels of the bus. Ms Zhang was in a coma for eight or nine days after the road traffic accident.
She claimed that the Bus Eireann driver made no attempt to prevent the accident and also that he was driving without any adequate regard for the presence and position of other vehicles or pedestrians. Bus Eireann denied these claims and contended that the claimant walked out from the crowd suddenly and into the path of the bus. This was despite the fact that pedestrian light at Aston Quay crossing was red.
Barrister Jerry Healy SC told the court that Ms Zhang was 22 years of age when the accident took place and that another individual, a male, had crossed the road slightly before Ms Zhang. He informed Justice Kevin Cross that Ms Zhang had first arrived in Ireland in 2003 and was a student and a part time care assistant.
Justice Cross explained to Ms Zhang’s family, who travelled from China to care for their daughter after the accident, that had the case gone to trial she may have lost and she could end up with nothing at all. The family had previously expressed some dissatisfaction with the settlement sum proposed.
A number of witnesses said that they had seen Ms Zhang push her way past bystanders before going out onto the road. Justice Cross told Ms Zhang’s family that the witnesses were willing to testify and their potential testimony could see the claimant could lose the case and receive no personal injury compensation.
Posted: December 3rd, 2018
The operators of the Luas and Irish Rail have revealed that there has been more than 110 incidents of tram/train surfing recorded on their services in and around Dublin since 2014.
This activity, which involves a person grabbing on to the exterior of a carriage as it departs a platform, came to public attention in October 2018 when 20-year-old Rebecca Kelly was awarded €550,000 in rail injury compensation for sustaining a significant brain injury in a fall. The accident in question occurred when she was a teenager and fell from the Luas that she was clinging onto.
In the accident Ms Kelly hit her head on the tracks and needed to be dragged out of the way of another tram that was approaching the platform.
In the last few weeks, a Freedom of Information request has revealed that over 35 cases of tram surfing have been registered on Luas services since 2014.
Transdev Representative Ms Dervla Brophy said: “Tram surfing can be fatal. We have had a very small number of incidents of people trying to ‘scut’ and all staff are trained to be vigilant, observe and report. The public have reported [cases] too. Any activity or even potential concern that is reported – trams will be stopped, security and or gardai called. The risk of serious injury is very high. We show CCTV of various incidents that have occurred along the lines. The purpose is to request parents know where their kids are and if they are on the lines, they’re aware just how dangerous their playground might be.”
In response to a separate Freedom of Information Irish Rail stated that 87 incidents of train surfing have been registered 2016. In the past three years 12 train surfing incidents occurred on the Northern commuter route linking Dublin and Dundalk. All of the officially recorded incidents happened on the services provided by the Dart commuter link.
Irish Rail spokesperson Barry Kenny, commenting on the revelations, stated: “On board staff, station staff and security personnel are vigilant in ensuring we respond with security or garda support. Extra security patrols this year are yielding a reduction in the number of incidents.”
Irish Rail also made public that they have made some changes to the exterior of the Dart fleet of 76 carriages to make them more difficult to hold onto in a bid to halt the train surfing efforts.
Posted: November 1st, 2018
A factory worker who experienced a fall to the ground resulting a severe ankle injury when he attempted to shift a trapped bin has been awarded €224,000 workplace injury compensation at the High Court.
Tomasz Zdejszy was employed at a refuse collection business when he suffered permanent damage on his ankle. Mr Zdejzy experienced fall of nine feet to the ground on April 2012 at the business park in Blanchardstown, Dublin 15.
In passing judgement Justice Michael Hanna stated that the 37-year-old man had climbed up a waste paper container to release a bin by kicking it. The Judge said that Mr Zdejszy had begun to climb down when a colleague gave him a metal bar to help with moving the bin.
In his workplace injury compensation case against his employer Stewart Foil Ltd, Tomasz claimed that there had been a failure to ensure the safe and proper removal of an obstacle to waste collection when Mr Zdejszy was required to work at a dangerous height.
In the workplace fall compensation action taken against Panda Waste Services, said that he was asked to remove or move a rubbish bin on a waste container while working at a height. He also said that he was given an inappropriate tool, a metal bar, to accomplish this task.
Justice Hanna found there was 20% contributory negligence charged to Mr Zdejszy as he did not employ sufficient care with regard to his own safety. The judge stated that Stewart Foil Ltd were 66% responsible and Panda Waste Services 33% responsible for the accident.
Judge Hanna remarked that Mr Zdejszy had suffered a typical injury for the fall in question, with a severe break of the right side of his foot, down into his ankle joint. This fracture resulted in him developing arthritis on the joint, which required surgical fusion. Mr Zdejszy had permanent loss of movement in his ankle, a loss of heel height of approximately one inch on the injured side and has been left with constant pain.
Posted: October 11th, 2018
€15,000 shopping centre injury compensation has been awarded to an 83-year-old mad who was injured in a fall when his shopping trolley got stuck on a travelator.
Judge Sarah Berkeley in the Circuit Civil Court was advised that John Ansell of Listrolin, Mullinavat, Co Kilkenny was travelling on a moving walkway at the Showgrounds Shopping Centre in Clonmel, Co Tipperary when the incident caused him to fall backwards, injuring his neck and shoulder and his left hand.
Mr Ansell told the Circuit Court that he had been going with the trolley from the Iceland Store, after he had paid for his shopping, towards the second-level car park and decided to use the travelator. When he was about to leave the travelator the trolley suddenly got stuck. Mr Ansell attempted to free the trolley but it his efforts were in vain as the moving walkway kept running. People closeby came and aided him in releasing the trolley but it shifted sideways suddenly and flung him backwards.
The shopping centre accident compensation action was taken against the two receivers who control the assets of MK 1 Property Investments, the owners of Iceland and Ennis Lifts who maintain the travelator.
Judge Berkeley was given a presentation from from four experts who sought to assign blame for the poor working of the moving walkway and the Iceland shopping trolley.
Judge Berkeley referred to the fact that Mr Ansell had no trouble with the shopping trolley until he was leaving the travelator. She went on to say that Mr Ansell was 100% not to blame for the accident that occurred. The judge said that he accepted the testimony of Mr Ansell’s wife, Karen, that the shopping centre manager had told her about a similar accident had happened just one week before her husband’s accident. As a result of this the judge deemed Mr Ansell’s accident as foreseeable and criticised the failure of the shopping centre management to address the condition of the moving walkway after the first incident.
As Ennis Lifts had completed the obligations of their maintenance contract the judge awarded the €15,000 shopping centre accident compensation award jointly against the owners of Iceland and the two receivers.
Posted: September 11th, 2018
An workplace industrial tribunal has awarded a personal injury compensation after she was mocked due to her west Belfast accent and harassed for being female.
The workplace bullying incident took place at the Four Winds pub in Castlereagh where Caroline Curran was employed as an assistant manager. She told the tribunal that she was mocked of and verbally teased due to her background and sex. She claimed that one manager told her she was “not in the Devenish now”, in reference to a pub in west Belfast. She claimed that another time a male colleague yelled at her: “Would you women f*** up!… you’re never done moaning.”
Ms Curran told the industrial tribunal: “I’m a strong person, but I found it extremely difficult to deal with mentally and I can only imagine if it was a younger woman or someone maybe not as strong as myself, what sort of state they would be in? I just didn’t want to let that go or allow them to treat anybody else like that.”
Ms Curran was hired as assistant manager of the bar in March 2017, under the supervision of manager Dermott McGinn and alongside fellow assistant manager Conor Magee. By July 2017 she submitted a formal grievance after becoming displeased at the treatment she was receiving and told that tribunal that Mr Magee “constantly undermines me in front of staff”.
Ms Curran also filed a formal complaint in relation to amendments to staff rotas, which she said he lied about causing her to feel “as if I’m going insane, sometimes he lies to me to make me think I’m wrong”. Following this incident she was signed out of work for two weeks and never returned to work at the pub again. However, she was present for a grievance meeting in August during which she testified that Mr Magee made pointed jokes towards her including: “You’re not in the Devenish now.”
Mr Magee disagreed with all of Ms Curran’s allegations, stating that “he hadn’t exactly a posh voice himself”, before going on to say that he thought he had the same accent and he comes from west Belfast. As the grievance meeting agree with her complaints Ms Curran took the matter to the workplace industrial tribunal.
At the tribunal legal counsel for Four Winds said the company disagreed with Ms Curran’s allegations that her gender was an “overarching theme” in her complaints against co-workers and that she did not pursue sex discrimination in her formally submitted grievance.
When delivering their ruling the tribunal said that Ms Curran was, in all likelihood, mocked due to her accent but this was not due to her gender. Along with this they added that her allegations of being undermined by Mr Magee were not due to her gender.
On the claims against Mr McGinn they ruled that this was due to “bad staff management”, however gender was not the cause of this. It did regard the comment, “Would you women just f*** up” as a clear instance of sexual harassment. The workplace industrial tribunal awarded Ms Curran £1,080 (€1,118) harassment compensation.
Posted: August 10th, 2018
Following the initiation of several thalidomide compensation claims, an official hearing has been adjourned at the High Court until November to allow for additional case management.
German drug manufacturer Grünenthal GmbHT,introduced Thalidomide as a sedative in Germany in 1957. They are now are facing 26 compensation cases taken against them, their Irish distributors TP Whelehan Son & Co, and the Ministers for Health and Environment. All parties deny the claims that have been made against them.
Allegations have been made stating that the drug inflicted deformities on unborn children when it was administered to pregnant mothers. The claims have been made in relation to incidents that took place in the 1960s. Due to this the High Court is currently reviewing whether the cases are statute-barred.
At the High Court the cases were brought before Mr Justice Seamus Noonan, who has stated that he is unhappy with “the slow pace” of the proceedings. Judge Noonan issued rulings to deal with a number of requests made by the defendants regarding certain aspects of their compensation claims.
The defendants claim that they need additional information from the plaintiffs in order to fully deal with the claims that are being taken against them. The judge concurred with this assertion and said that the details should be provided before the case is back before the court for further case management on 7 November. Judge Noonan added that the plaintiffs had a right to ask for discover documents from the State as part of their compensation action.
In a previous statement read out to the High Court, a representative for Grünenthal said the firm iss “deeply sorry for what happened to those affected by the thalidomide tragedy. It’s important for us that we engage in efforts to improve the situations of those who are still living with the impact of these latter effects. We set up the Grünenthal Foundation to provide benefits in kind and financing for individual projects for those affected. Since its establishment, the Grünenthal Foundation has also approved more than 1,000 applications for individualised support in Germany and internationally.”
Posted: July 24th, 2018
A €600,00 late diagnosis compensation settlement has been awarded to the family of a 26-year-old woman who died of breast cancer in theit High Court action against the Health Service Executive in relation to the care she received when she first attended the Mid Western Regional Hospital in Ennis with a lump on her breast.
The woman, Edel Kelly, had two young sons age six and three years of age when she died after suffering from breast cancer on June 21, 2008.
It is alleged that the lump she presented with in August 2006 at the Mid Western Regional Hospital, Ennis, Co Clare the same cancer which was subsequently diagnosed in October 2007 at a different hospital.
Legal Counsel for the family Oonah McCrann SC told the High Court today that there was an unnecessary delay of 13 months in the diagnosis of the young mother’s breast cancer and a resulting delay to her treatment.
The legal action was taken by Edel’s long-term partner Noel McGreene, Cluain na Mara, Carrigaholt Road, Kilkee, Co Clare, against HSE in relation to the care Edel had received at the Ennis hospital. She (Edel) was referred by her GP on July 26, 2006 to a breast clinic at the Mid Western Regional Hospital, Ennis after finding a lump on her breast.
Ms Kelly was taken for an ultrasound and irregular soft tissue about 2cm wide was identified in her left breast. In October she had a biopsy but it indicated that the tissue was benign. 12 months later on October 23, 2007 she attended the breast clinic at the Mid-Western Regional Hospital in Limerick and and a 6cm mass was found in her left breast. A subsequent a biopsy indicated the presence of cancer. In November 2007, a specialist advised the young mother that she had ten months to a year to twelve months to live at best.
Breach of duty was accepted by the HSE in the case but the court heard that causation was at issue in the action.
Mr Justice Kevin Cross approved the late diagnosis compensation settlement.
Posted: April 13th, 2018
€37,500 car accident compensation awarded to two children injured in a car accident has been described as ‘inadequate’ by the father of the children.
The compensation award was divided as €20,000 for his nine-year-old in relation to a suspected fracture of his left arm and €17,500 for his seven-year-old brother in relation to soft tissue injuries.
The boys were injured in a car accident which occurred on March 26, 2016 and had sued an insured motorist, Dusan Gabor through their father.
Through the boy’s Barrister John Nolan their father, Graham Comiskey, told Judge Terence O’Sullivan in the Circuit Civil Court that was not satisfied with either settlement.
Mr Nolan said: “While the boys have sued through their father, Mr Comiskey, I have to consider the interests of the children and I do not believe they would gain higher awards in a full trial and may even be awarded much less”.
Mr Comiskey referred to the Book of Quantum in relation the compensation for such injuries and the settlements. He compared the settlement for his boys and stated that they were at the lower end of suggested damages.
He also queried if it would be possible for him to appeal should the judge go ahead and approve the road accident compensation settlements.
Judge O’Sullivan explained to Mr Comiskey a different judge may award a lower amount of road accident compensation. He added that he was happy that the compensation fell in the range of €15,000 and €20,000.
Counsel for the Comiskey family told the Court that this had been explained to Mr Comiskey. However, the boys’ father was still eager to oppose accepting the offers.
Judge O’Sullivan chose to approve both child accident compensation settlement offers and said that the monies be paid into court funds on behalf of the children in question.
He also advised Mr Comiskey: “Any decision of the Circuit Court can be appealed.”