Personal Injury Compensation
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.”
Posted: March 17th, 2018
A €165,000 High Court Settlement has been approved for a man who suffered multiple severe injuries when a tree fell on him during stormy weather.
Mr Justice Kevin Cross was told that John Haskins Junior (37) ‘lucky to survive the accident which happened four years ago. Mr Haskins sustained fractures to the spine, ribs and ankle. As a result of the incident he spent the two months after it in hospital receiving treatment.
Taking the action through his father Mr Haskins Jnr, who lives in Athy, Co Kildare sued Camphill Communities of Ireland, proprietor of a health care center located in Dunshane House, Brannmockstown, Naas, Co Kildare, due to the suffering he experienced in the accident that occurred on February 12, 2014.
Mr Haskins Jr was an inpatient at the health care facility when the accident occurred as he has Asperger syndrome. Mr Haskins’ legal counsel advised the High Court that he was walking through the garden of the centre, a mature beech tree dropped and hit him. It is alleged that the tree was known to be diseased and, despite this, was not removed from the area where it posed a threat to anyone close by. Additionally, they claimed that an alleged failure to maintain, fix or removed the tree or take the necessary steps to make it safe. The area could have been fences off or, ideally, the tree would have been felled.
It was also claimed there was a failure to take any adequate or effective measures to fence off or secure the area or to have the tree completely removed.
The claims were refuted as, it was claimed, the tree was alive and did not give the appearance of being in any way unhealthy. The decay in the tree root could only have been detected by a trained arboriculturist according to the defendant.
Hugh Mohan SC, for Mr Haskins, referred to a consultant report for his side which stated that there was a decay and fungus in the tree and it had led to rot developing in the roots and the wood then becoming degraded and subject to fracture.
Mr Justice Cross, in approving the settlement, commented that Mr Haskins had made a fantastic recovery after suffering major injuries.
Posted: January 25th, 2018
A Garda, who sustained a disfigured fingernail injury in a work accident that involved a Garda car door slamming shut on his left small finger has appealed the refusal to allow him pursue a work place injury compensation claim.
Garda Noel Callan, who was apprehending a drunk and violent man when the incident occurred, argued that the Minister for Justice’s refusal to allow a compensation claim (under the Garda Compensation Acts) as, based on the medical reports and evidence made available to him, the injury was minor was incorrect.
The High Court heard the challenge to that refusal on Wednesday and Mr Justice Max Barrett has reserved judgment in relation to it.
Richard Kean SC, acting on behalf of Garda Callan told the Hight Court that, as per the Garda Compensation Acts, a Garda who sustains a work injury has the right to claim personal injury compensation through the courts. He added that gardai are awarded sums in cases where it is deemed appropriate.
However, Garda Callan’s legal team agreed with the fact that the Justice Minister must give permission for a work injury compensation to be take and is under no obligation. Indeed, they may refuse to do so if they feel that the injured party suffered was minor injuries.
However, the term ‘minor injury’ is not defined in the legislation. Due to this Mr Kean argued that, though the injury was not profound or significant, it still should not be referred to as a minor injury. He went on to say that the Justice Minister’s ruling was not sound and did not properly review the medical reports that were produced at the initial hearing.
The court was told that Garda Callan is right handed and received treatment on his left hand’s smallest finger. He was also absent from work for the seven days immediately after the incident occurred.
Mr Callan suffered a lacerated fingernail bed and his fingernail had to be taken off. Due to this he felt experienced constant over the following eight months including a loss of sensation and tenderness when he was driving his car and completing other everyday tasks.
Mr Kean described the incident in which Garda Callan sustained the fingernail injury when was on duty at Swords, Co Dublin, on August 26 2011. After a drunk man became violent, having being arrested in relation to public order offences, a car door slammed on Garda Callan’s left hand inflicting the injury.
The medical report submitted made reference the fact the fingernail was irregular and deformed when it grew back. Garda Callan experience ongoing pain and tenderness, more so during periods of colder weather.
Legal Representatives for the Justice Minister, opposing Garda Callan’s application argued that all the medical evidence was considered at the first hearing, including a medical report stating Garda Callan had practically fully recovered from the injury. It was because of this that the Justice Minister felt this this was a minor injury concerning the appearance of Garda Callan’s fingernail.
Judgement has been reserved by Judge Max Barrett