Main Issue
The preliminary ruling under Article 267 TFEU to the Austrian Supreme Court provided clarification of what constitutes an accident triggering liability on the part of the air carrier under Article 17(1) of the Montreal Convention. The Convention sets out common rules relating to the international carriage of passengers, luggage and cargo by aircraft. Read more “Personal Injury on Aircraft – definition of accident”
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
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.
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.
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.
