Call McGarr Solicitors on: 01 6351580

The Injuries Board – some Questions and Answers

1. I have been injured; will the person who injured me, or his/her insurance company, hasten to fully compensate me?

No, they will not. This is human nature and also implied in the social arrangements under which we live.

2. Will the Injuries Board ensure that my interests are fully looked after?

No, it will not. It has a limited focus. It only addresses one question; the level of compensation the injured person ought to get. It does little to ensure that you will actually get your compensation.

3.         How can that be?

An injured person will get nothing unless he/she can prove, if necessary, that some other person has been at fault and that the injury results from that fault. The Injuries Board expressly excludes consideration of fault.

4.         Surely that’s a good thing?

Yes, if the person who injured you expressly admits the fault.

5.         Will that happen in the Injuries Board system?

No, it never comes up for mention.

4.         Who will look after my interests, then?

You will.

5.         How do I do that?

By fully understanding what is implied in the Injuries Board system.

6.         What is implied in the Injuries Board system?

The Injuries Board system exists to ensure that any legal costs incurred by you as a result of your injury will be borne by you and not by the person who injured you.

7.         Is that true?

Not completely. That’s how the Injuries Board started out, but it has changed its mind. It now makes an effort to make your opponent pay for your legal representation, or some of it, if you, the injured person, are a vulnerable person.

8. I have been injured. Am I not vulnerable by that fact alone?

No, not in the view of the injuries board. In the view of the person from whom you are trying to extract compensation, or his/her insurance company, yes, you are vulnerable, but that is advantageous to them and they owe you no duty to reduce your vulnerability.

9.         I am inexperienced in these matters. Am I not vulnerable by that fact, then?

No, not in the view of the injuries board.

10.       What is a vulnerable person, in the view of the Injuries Board?

Someone who needs legal advice to make the application to the Injuries Board.

11.       But surely no such advice is necessary?

The Injuries Board thinks it is sometimes. If you are a vulnerable person.

 

Death and The Injuries Board

Since 2004 the limitation period within which an injured person must issue personal injury proceedings, before being barred from bringing such a claim, is two years.

Because such a person is [generally] obliged to apply to the Injuries Board for an assessment of the value of the person’s claim before proceedings may be issued, time is suspended from running under the limitation period while the Injuries Board is considering the application (and, possibly, corresponding with the guilty respondent or his/her insurance company). Not only does time not run during that period, it does not commence running again for six months after the Injuries board issues its authorisation to the injured applicant to issue legal proceedings.

There is an exception to this regime; if the guilty respondent dies at some point the injured applicant has two years to issue legal proceedings from the date of the death of the guilty respondent. This time period, it appears, does not cease to run because the applicant has lodged an application to the Injuries Board.

It is very possible for an injured applicant to know nothing of the personal circumstances of a guilty respondent. Even the Injuries Board may know nothing of those circumstances; the Board will carry on correspondence with a lawyer or an insurance company acting for the respondent (who, in their turn, may also not know of the state of health of the respondent).

The Injuries Board claims to process applications, on average, within approximately seven months of an application. Depending on the facts of the case this may not be fast enough.

The risk of loss in these circumstances lies with the injured applicant, not with the Injuries Board.

Like all institutions, it is insulated from the effects of death.

 

The Injuries Board

The Annual Report of the Injuries Board is always worth reading. It suffers from a persistent tone of self-congratulation but the Injuries Board has access to information previously possessed only by insurance companies and it publishes it, or some of it, in the Annual report and other publications.

The Injuries Board views this information narrowly. It extracts it as statistics and makes little effort to draw conclusions from it.

For instance it remarked of public liability claims for 2009;

“Females accounted for 72% of the 1443 PL awards during the period of this review – over  twice as many (2.5 times) as males. This is a direct reversal of data for workplace accidents where females account for just over a quarter (26%) of awards.”

A curious mind would ask if this is evidence of something, and if so, what? Furthermore, to what use can it be put ? The Injuries Board doesn’t ask these kind of questions.

It is reasonable to speculate that women do more shopping than men; they are more vulnerable to traps or deficiencies in premises open to the public.

If that is the case, what does it say about the Occupier’s Liability Act 1995? Was it, in effect, directed to denying the claims of one sex, women?

The Injuries Board Report goes on to say:

“Just over half (51%) of the accidents under review took place in privately owned establishments, with one in four (25%) occurring in a retail/shopping outlet, one in five (19%) in a hotel/pub/nightclub or restaurant and 7% in leisure facilities like sports clubs/gyms and cinemas. almost a quarter of PL awards (24%) were made against local authorities and a further 8% involved transport and utility services.”

This is peculiar; there is a world of difference between “accidents” and “awards”. Many people who have accidents on the public highway will fail in their claim against a local authority. The reason is, they have to show that they, effectively, were injured at a place where the authority caused the defect which led to their injury. If they cannot show that, where the defect developed from wear and tear, say, they will fail.

This aspect is hidden in the use of “accidents” and “awards”. As they say in trade union circles, one is apples and the other is oranges; in a phrase, they are not comparable.

Iolanthe, Certainty and Knowledge

It’s official; fingerprint evidence is a matter of opinion and not a matter of fact. This is a very interesting subject because the subject is not just fingerprints, (an interesting subject) but the things that we know and the basis for our knowing them.

For instance, Mrs. Quinn contested her liability to repay €3,000,000 to Anglo Irish Bank on the grounds that she did not know that she was borrowing the money and, in fact, never received it.

(I hope this characterisation of her position is correct. If the High Court decided to enter the modern world, it would assign to junior barristers the job of posting pleadings and affidavits, opened in court, on the internet. That would achieve two ends; to conduct its business in public and give employment to junior barristers.)

The court, reportedly, accepted the truth of her contentions but termed her negligent. By that the court meant, negligent in her own interest.

This was wise; neither Anglo Irish Bank nor the court was in a position to conclusively establish Mrs. Quinn’s state of mind in 2006 when she signed the loan documentation.

It was also unnecessary. The burden of proof on Anglo Irish Bank was on the balance of probability. Undoubtedly its loan documentation unequivocally showed that Mrs. Quinn signed up to a loan transaction. (We can know this because of what we know about lawyers; her lawyers would have pointed out any deficiencies. From reports, they did not, therefore there were none).

Consequently it was more probable that she knew what the documentation represented than not and should be held to its terms.

Of course she has a current exemplar in her view of the unreliability of her knowledge of the world. Bertie Ahern has attributed his blamelessness for Ireland’s financial disaster to the fact that nobody told him what was going on in the banks.

“If I had seen the banking crisis coming. Nobody advised me, no economist, all those people now writing books saying ‘I told you so’ – none of them.”

This presumes that we believe him. It also suggests that we can know things and that in the absence of that certain knowledge we are blameless if we are mistaken.

This writer remembers (he thinks) hearing of “culpable ignorance” , a Thomistic concept, at school.

This writer also knows, from experience, how easily people are misled by their mistaken certainties; about what they saw and whom they saw. Being correct in making an identification of persons is so fraught with error that courts must issue warnings about the unreliability of such evidence to juries where prosecutors rely on that evidence.

Notwithstanding we, all of us, can, in principle at least, be radically totally and serenely wrong, like the character in Iolanthe who

“Bound on that journey you find your attorney

Who started that morning from Devon.

He’s a bit undersized and you don’t feel surprised

When he tells you he’s only eleven”

neither Mrs. Quinn nor Bertie Ahern could plausibly sing those lines.

They each of them have lived full active lives in business and politics respectively and in the case of Bertie Ahern, he was the leader of the country, the leader of his party and memorialised by a predecessor as “… the most skilful, the most devious, the most cunning of them all”.

The singer in Iolanthe had an excuse; he was dreaming. Neither Mrs. Quinn nor Bertie Ahern can pass off their mess like that.

Criminal Behaviour?

What is one to make of the implied threat from the Minister for Justice and Equality? He has suggested that the proposed Legal Aid strike by members of the Criminal Law Practitioners Organisation is of doubtful legality. This may just be bluster. If it is not, he will, presumably, contemplate a range of options. He might:

a)              Remove solicitor strikers from the Legal Aid practitioners’ panel; and/or

b)             Refer solicitor strikers to the disciplinary processes of the Solicitors’ Disciplinary Tribunal;

(Barristers are chosen by solicitors; consequently they, to partake in the strike, need only have a private conversation with their solicitor benefactors advising them that they are not available for work. The Minister would have his work cut out for him to access the content of such conversations, if not their effect).

He will not choose b); the Tribunal has expressed disappointment that the Minister has tabled proposals to replace them when they have, to paraphrase it, an unblemished record of doing their work.

He may not react at all. His Press Office, HERE, expresses the peculiar language adopted for such happenings;

“The threatened withdrawal of services seems to apply only to defence lawyers operating under the criminal legal aid scheme…”

Well, yes.

They were the very people whose incomes were being cut by the Minister and who made the complaint to him. His response was to cut the incomes of other lawyers, as if the substance of the initial complaint was a demand for absolute fairness, even in misery.

Those other lawyers are barristers briefed by the State. No solicitor on the Legal Aid panel works for the State in prosecution work and vice versa. State prosecutions are taken by various solicitors appointed for that purpose in, effectively, County districts around the country. For good and obvious reasons they do not offer services to the general public for defence work.

The Minister says:

“The Minister has invited the Criminal Law Practitioners Organisation to furnish to him their proposals for reducing the cost of Criminal Legal Aid whilst continuing to ensure that the rights of alleged offenders are being protected.”

This is provocative. The Minister means by this:

“The Minister has invited the Criminal Law Practitioners Organisation to furnish to him their proposals for reducing the [fees paid to criminal law practitioners…]”

The Minister’s mode of expression is a “first strike” in a blame game where the Minister’s antagonists are weak and disparate and their work is obscure to most citizens.

Santa’s Grotto

The title to this post is tongue-in-cheek. It is the appellation attached to one High Court judge, deemed too generous to personal injury plaintiffs, by a politically well-connected barrister.

It is worth bearing in mind that the plaintiffs will have successfully overcome many difficulties. They will have established that their defendant breached any number of duties owed to them. (See HERE for the Health & Safety Authority’s Guidance on Manual Handling of Loads. Breach of the Regulations referred to in the Guidance is a breach of a statutory duty; negligence aside, to breach the Regulations is sufficient to trigger a liability. Claims arising from back and similar injuries are some of the most intractable faced by lawyers and judges).

The legal industry in Ireland is small. It is a certainty that “Santa’s Grotto” heard of his new nickname and was intended to hear of it. It was, objectively, calculated to curb his “excesses” in the award of damages to personal injury plaintiffs.

It is an issue of interest to know which of these persons, the judge or the barrister, was right about the value of personal injury claims, but it is much more timely to ask; with a barrister like that strutting his stuff, how can any reasonable person think that Ireland has or had an “Independent Legal Profession”?

Sure, he was independent of the judge, but whose spokesperson was he?

In the provision of services to public authorities there is an exception to the obligation to place the business out to tender; the exception is legal services. This is why Government and State agencies can, without a blush, allocate substantial earning opportunities to the big Dublin firms of solicitors (some more than others) even where the work is not very esoteric or specialised. It is ridiculous to suggest that these firms are “independent”.

Consequently, the legal profession is not independent. Asserting it is does not make it so.

The Paperless Court

This writer has an iPhone, but is not an enthusiast of it. Peering into BAILII on the small screen, to read Ireland’s Road Traffic Acts, say, is not to be recommended, particularly if a court hearing is in the offing.

Consequently, the proposal to introduce “the paperless office” to Norwich prosecutors is looked at with a jaundiced eye.

That same eye, being in private practice, is distantly threatened with strain; if the prosecutor has a tablet, the defence counsel must have one also.

The interesting issue is, however, not the tablet; it is the prosecutor and the prosecutor’s mind-set. Does it matter a fig (assuming it to be true) that some money will be saved by the use of tablets? Many administrators would be able to find other ways of saving money in the conduct of criminal trials. Why should they not be given their wish?

A criminal trial is, supposedly, not about the convenience of the prosecution; it is, reputedly, a search for justice.

When it is not that, it is a fraud. It is a fraud because its procedural approach is deceitful. The elaborate procedure of a criminal trial is intended to vindicate the State as it punishes a human being. If the State has some other agenda it is the State that should be in the dock, not the accused.

What kind of impermissible agenda could a State have?

Well, levying terror on its own military forces is one.

Needless to say, there will be no evidence of impermissible agendas in prosecutors’ tablets. To find that kind of stuff, defence counsel must walk, as it were, behind the false wall of the prosecutor’s case and find the real evidence. That will become more difficult without ready access, without quibble, to all the prosecution material, particularly the stuff the prosecutor deems not relevant or necessary to his/her case.

If that is what the defence requires and needs, there will develop a new stage in a paperless prosecution; the inspection in situ of prosecution paper. We know how important it is to be skeptical of conventional wisdom; now we must be skeptical of prosecutorial WYSIWUG.*

 

* “What You See Is What You Get”, Apple’s reprobation of Microsoft’s interface (before Windows).

The Politics Of Contracts

General McClellan had talent. He was good at organization; his record as a railway executive had shown that. Events brought him back into the US army and made him commander of the Union armies, particularly in the east, at the beginning of the US civil war.

When President Lincoln visited him in the field, McClellan kept him waiting outside his tent. In discussion later about this slight, Lincoln said he would gladly hold McClellan’s horse [its reins] if it would assist him [McClellan] in the military effort.

McClellan was the weaker of these men and subsequent events showed this; but so too did that slight.

The US civil war was a political struggle first. The Dred Scott case showed this. With that case, in effect, the US Supreme court opened the way for the extension of slavery into the new western territories. The decision undermined what was a political settlement between the slave-owning states and the non-slave-owning states.

It was an aggressive move by the secessionists.

Judges of superior courts need to understand things like this. Consequently they need to be able to decline to adjudicate on a political question and/or underpin a political arrangement, depending on the circumstances.

Ireland subscribes to a major political arrangement, as nominally expressed in the law of contract; people should be and will be held to their agreements.

With exceptions.

We now know that ideas cast in this form and applied to Dred Scott were deficient. Nobody working for Dred Scott asserted his right as a person to be free; they pleaded the law of the Northern States and Territories and the US Constitution to establish his right to be free.

The mode of thought in the law of contract analogous to an appeal to a human right to be free is to distinguish between the form and the substance of an agreement. This is what we do when we speak of “predatory lending”.

It is not a good thing, always, to borrow money. The form of the borrowing arrangement may be, in substance, a plan to take what property the borrower already has, from him/her.

Businesses in the financial industry are obliged to expressly aver that the “product” is suitable for the “customer”. This is an old idea and is part of the law on the sale of goods.

What if a loan is spectacularly unsuitable to the customer? Who, but the lender, in that transaction is best able to know this?

Consequently, financial claims arising in contract do not all deserve to be heard in summary manner in the High court; some should go to plenary hearing with a full examination of the context in which the agreement was concluded.

FBM

The title is an acronym for Fact Based Medicine. (Can there be any other kind?)

We hope our doctors are thoughtful, attentive and kind, but we also expect them to be competent, ie, rational. That’s why we expect them to seek the facts. Before you seek the facts you need to know what facts you are seeking. That applies to the legal industry as much as to the medical profession.

The practice of law is much more a collective effort than medicine is. It cleaves more to convention than medicine does, say.

This writer was in High Court 2 in the Round Hall of the Four Courts a few days ago. The Personal Injuries list was called over. It was a very long list. It featured those personal injuries actions which had now reached their hearing date and in which the parties had arrived in court for trial. But they did not get their trial, most of them. They were, metaphorically, in a traffic jam. Cases were still in the list and being called over that had first appeared a week before; that meant the parties and their witnesses (potentially, if not actually) had been returning again and again to the Four Courts seeking a trial and had been failed again and again. Each succeeding day brought a new cohort of cases into the list. They too, failed to get a hearing and would have to come back the next day, and the next day and so on.

The judge struggled to express what everybody was feeling; that it was time to consider abandoning ship, metaphorically, and cancel the list. But he would not do it, unless the Counsel asked him. He then resiled from this, to laughter, saying it was not a matter where they had a vote.

But of course, they do and should. The courts system would not function without the lawyers. However, the forensic traffic jam was a symptom of another problem; a cumulative failure to settle the cases.

Taking a benign view of politics, this is the kind of problem that prompts Ministers for Justice to commission a Report from the likes of The Committee on Court Practice and Procedure. See the PDF of the Committee’s 29th Report (dated 2004) HERE- [DOC] CCPP 29th Report – Courts Service

In that Report the Committee remarked;

“At present a very small proportion of personal injuries cases go to trial. However, litigants have the right of access to the courts and the process available should be the dispensing of justice in a speedy, efficient and effective manner.”

And again;

“It… [personal injuries litigation]… is a small proportion of the High Court work. High Court judges are required to hear cases in lists on Personal Injuries, Bail, Bankruptcy, Chancery, Commercial, Common Law Motions Circuit Court Appeals, Family Law, Garda Compensation, Judicial Review, Probate, Proceeds of Crime Act, Asylum, Admiralty, Solicitors Act, Medical Council, Nursing Council, Dental Council, Extradition, European Arrest Warrants, The Hague Convention, The Luxembourg Convention and Crime.”

The Committee failed, among other failures, to look at the implications of the sentence “At present a very small proportion of personal injuries cases go to trial.” The statement is accurate and the credit belongs to the two branches of the legal profession, but those settled cases were not investigated by the Committee. The Committee was to “…examine all aspects of practice and procedure relating to personal injuries litigation and consider whether the present system of practice and pleadings is appropriate to modern personal injuries litigation.”

Surely the criterion of the success or failure of a practice or procedure is that it assist in the process of settlement? If the Committee did not investigate what was good and working in the then current system, how could they be said to have considered “modern personal injuries litigation”. (What is that?)

Then there was the note of regret; “However, litigants have the right of access to the courts…” and the recitation of the various lists, clearly addressed to lay ears. Those lists are not equivalent to each other and some generate vastly more work than others or, conversely, some generate little work.

What is notable is that Reports like this (particularly this one) depart from “initial conditions”. Here, the Minister defined the initial conditions. The Report then recites the then current practices. What is absent is evidence that the Minister’s conditions are pertinent to some real problem or that the current practices are seriously deficient.

We know that the practices and procedures were changed subsequent to the Report.

Now the Personal Injuries List is breaking down.

Don’t expect expressions of regret from any participants, or admissions that the changes for which the Minister was responsible have led to this.

Answer That

“It will be convenient to have a name for the ideas which are esteemed at any time for their acceptability, and it should be a term that emphasizes this predictability. I shall refer to these ideas henceforth as the conventional wisdom.”

So wrote John Kenneth Galbraith in 1958 when he coined the phrase “conventional wisdom”.

The idea is so good that he was not the first to recognize the truth in the phrase; that much of what passes for ideas is real only because it has been agreed to be so.

If that truth were to be again forgotten a criminal legal aid lawyer would be a prime candidate to re-discover its force. As a solicitor on the Legal Aid panel I feel the power of dislocation it engenders when I read HERE that some of my predecessors have had to represent pigs, goats, rats and other animals.

“All over Europe, throughout the middle-ages and right on into the 19th century, animals were, as it turns out, tried for human crimes. Dogs, pigs, cows, rats and even flies and caterpillars were arraigned in court on charges ranging from murder to obscenity. The trials were conducted with full ceremony: evidence was heard on both sides, witnesses were called, and in many cases the accused animal was granted a form of legal aid — a lawyer being appointed at the tax-payer’s expense to conduct the animal’s defence. …”

A lay person might (on reflection) wonder (or not, on reflection) how the lawyer is to take instructions from the client, a phrase and concept itself wonderfully conventional. We lawyers don’t need the client to tell us what we are to do; we tell the client what the client needs and proceed to do that. So, if a pig is facing a murder rap we undermine the evidence and so on, depending on the character of the charge, not the character of the accused.

Nobody knew this better than Socrates. He lived an unconventional life and the first charge against him read;

“Socrates does wrong and is too concerned with enquiring about what’s in the heavens and below the earth and to make the weaker argument appear the stronger and to teach these same things to others”

This was an accusation that he, Socrates, was a non-conformist, something he consciously sought to be. In effect, it accused him of being himself.

There are some charges you just can’t beat; being a pig must be one.

1 … 22 23 24 25 26 27 28 29 30 31 32 … 95