personal injury compensation
| jbadmin | 0 Comments | Personal Injury | , , ,

Accident victim duty to mitigate loss

Obligation on accident victim

Where an individual decides to take a personal injuries action they are under a legal duty to minimise the amount of losses incurred. This duty is known as mitigation of loss.

The obligation on Plaintiffs (victim) to avoid unnecessary losses is set out in law in the Civil Liability and Courts Act, 1961. The reasoning behind this is that it would be unfair for the Defendant to be held liable for costs which could have been reasonably avoided. The duty to mitigate relates to both general damages for pain and suffering and special damages for actual financial losses incurred.

Examples of Mitigation of Loss

  • Returning to work as soon as practicable to reduce loss of earnings
  • Attending relevant medical appointments
  • Doing rehabilitative exercises to expedite recovery (if recommended)
  • Avoiding unnecessary expenditure where possible

Failure to Mitigate

The onus of proof is on the Defendant to show that the Plaintiff acted unreasonably in the incurring of additional losses. Where a Plaintiff is found to have negligently or carelessly failed to mitigate their losses, this will be deemed contributory negligence and they will be held responsible for an appropriate portion of losses incurred. The judge will review the additional losses caused by the failure to mitigate and will reduce damages accordingly.

Plaintiff on illness benefit

It is incorrect to assume that payment of illness benefit by Social Welfare means that the Plaintiff (victim) remains genuinely unfit to work of any kind. In personal injury case it will be separately verified (separate to how Social Welfare is or may verify if a person is really sick and unfit to work) whether Plaintiff is fit to resume employment. You  should also get proper legal advice how you shall be making attempt to return to other type of employment, maybe to obtain new qualification or skill and how you may get financial support for that.

Employment Law – Prawo-pracy
| jbadmin | 0 Comments | Employment, Litigation | , , , ,

Accident at work

Accidents in the Workplace

Under the Health, Safety and Welfare at Work Act 2005, your employer has a duty of care to ensure your safety during working hours.  When you have an accident at work that results in injury, it is likely that this accident will be covered by your Employers Liability Insurance. This means that in the vast majority of cases, your employer won’t be personally liable for any compensation awarded for your injury should you choose to pursue a case for personal injury.

Often when people suffer injuries at work they are understandably reluctant to take legal action against their employer for fear of negative personal consequences or even that it may put their employment at risk. It is important for potential claimants to be aware that an employer cannot discriminate against an employee on the basis of pending litigation and any such behaviour could be sufficient grounds for a complaint to the Workplace Relations Commission.

If you have suffered serious personal injuries as a result of an accident in your workplace it is advisable that you speak to a Solicitor as soon as possible. The Solicitor will be able to review the facts, consider any potential negligence and advise on the appropriate course of action in the circumstances. We advice to seek initial information within one month of the accident, as there is law which requires a letter to be send within 30 days form accident date advising of your intention to claim compensation.

personal injury letter of claim
| jbadmin | 0 Comments | Legal Advice, Litigation | , , ,

Less Time for personal injury victim to start the case

Responsibility on Injured Party

Irish law places an obligation on a party initiating proceedings in respect of personal injuries to send a letter of claim in advance of the litigation. This letter sets out the basis of the alleged wrong and gives the Defendant an opportunity to admit liability. In reality, the function of this letter is to notify the defending parting that proceedings may be imminent.

Since 2004 the law has allowed the proposed Plaintiff a period of two months to serve a letter of claim, beginning from the date of the cause of action. If the Plaintiff failed to deliver the letter within such a period, ‘the court hearing the action may’ per Section 8 of the Civil Liability and Courts Act 2004

‘’ (a) draw such inferences from the failure as appear proper, and
(b) where the interests of justice so require—
(i) make no order as to the payment of costs to the plaintiff, or
(ii) deduct such amount from the costs that would, but for this section, be payable to the plaintiff as it considers appropriate. ’’

The Amendment

As of the 19th of June 2019, Court rules now stipulate that the proposed Plaintiff has a period of one month only from the date of the cause of action in order to send the letter of claim. This places a greater responsibility on parties seeking to initiate a claim not to delay matters at the initial stages. Inferences can be drawn from a failure to serve the letter within one month or as soon as practicable thereafter and there can be financial consequences at the conclusion of the matter in respect of the awarding of costs.

The other significant aspect of this amendment is that under the previous legislation it stated that the Court ‘may’ consider the failure whereas under the new legislation it is stated the court ‘shall’ consider the failure, therefore the judicial discretion in this regard has been removed.

Consequences

The consequence of this amendment for Plaintiffs is that a failure to serve a letter of claim on the Defendant within one month will certainly be considered at the conclusion of the matter in the awarding of costs. Of course, if there is a legitimate reason for the delay the judge will take this into consideration but this does not remove the possibility that the Judge will either make no order as to the payment of costs or deduct certain amounts from the Plaintiffs costs.

What does this mean for personal injury victim? If you have suffered personal injury and intend on proceeding with a claim, it is very important that you do not delay in coming to your Solicitor after the injury occurs so that there is sufficient time to consider the merits of your case and if appropriate, deliver a letter of claim to the relevant parties in a timely fashion.

Important

Do not confuse a period of two years that injured party in general have to claim compensation for personal injury before their claim becomes statute barred. You still have that two year time limit to claim but there are potential financial consequences if a letter of claim is not sent within one month  from the date of accident/injury.

| jbadmin | 0 Comments | Litigation | , , ,

Trip & Fall on a public footpath yet again

A young Sportsman was recently awarded €51,936.02 following a trip on a public footpath on Lower Baggot Street, Dublin. This ruling may mark a slight departure from the court’s traditional reluctance to award damages for minor falls on public footpaths.

What Happened
The accident occurred on the 29th July 2014 when the Plaintiff was returning to work at the Shelbourne Hotel. While walking down the footpath he was caused to stumble when his right foot got caught adjacent to a cover over a chamber which was believed to have been fitted by Eircom. The Plaintiff did not fall to the ground but felt some pain and after composing himself returned to work.

Footpath but crucial is another element

In cases that occur on public footpaths, the most important thing to establish is who (if anyone) may be liable. In this case, the Plaintiff was not caused to trip by the path itself but rather a small hole that had formed around the poorly fitted cover. On this basis the Plaintiff sued Eircom as the party responsible for the upkeep of the chamber and cover and also Dublin City Council, being the Roads’ Authority for the relevant area.

Who is responsible

In his judgement, Mr Justice Barr identified that ‘the essential dispute in the case revolved around the question of which of the defendants was responsible for the concrete surround around the chamber cover’. Some conflicting propositions were put forward about who had fitted the poorly secured surround and there was some suggestion from the First Named Defendant that the Second Named Defendant may have taken the locus in charge at the time in order to complete these works. However, given the lack of documentary evidence in support of this assertion coupled with the first Named Defendants continuing obligations under the Telegraphs Act, the Judge was not satisfied that the Second Named Defendant had any liability in this case whatsoever.

Injured person should look where they walk?

In such cases, the Judge will always consider whether the injured party contributed to or even caused the accident by not acting with due attention and care for their own safety. This can be a significant consideration in relation to the assessment of liability in trip and fall cases. On the facts presented, the Judge felt that given the size of the hole, the Plaintiff could not have been reasonably expected to notice same as he walked along the path and consequently found no contributory negligence on the part of the Plaintiff.

The Judge ultimately found the First Named Defendant 100% liable for the accident and awarded damages in the sum of €51,936.02.

What slightly differentiates this case in terms of trip and falls on public paths is that responsibility for the precise accident locus was not found to rest with Dublin City Council, being the relevant Roads’ Authority. Nonetheless, this judgement opens the possibility of success in such cases where the relevant portion of the footpath creates a ‘substantial danger’ to pedestrians.