Awards for Whiplash Injuries in Ireland 4.4 Times Higher Than England and Wales-New Report

whiplash claims ireland

It is often claimed that the level of awards in personal injuries claims in Ireland is laughable and out of step with the rest of the developed world. A ‘compo culture’ is a phrase that is regularly thrown around but is there any truth in this?

A new report form the Personal Injuries Assessment Board (PIAB) which gives the data for the first six months of 2018 certainly supports this view. It tells us that the level of award in Ireland is 4.4 times that of awards for similar injuries in England and Wales.

For the first 6 months of 2018 the average award in Ireland for a whiplash type injury for the driver of a car in a car accident was €20,800 which breaks down to a figure of €19,066 for the injury itself-that is, general damages-and €1,734 for special damages-that is, out of pocket expenses.

Interestingly female victims were awarded a little more than males.

A whiplash type injury is one that involves soft tissue injuries to the neck, upper back, shoulders, and strains/sprains of the spine.

The figure for non-whiplash injuries for the first 6 months was €27,386; this would include more serious injuries than whiplash-for example, fractures, sprains, and so forth.

The report from PIAB also shows that 70% of claims in car accident claims for the same period were whiplash related.

It is hard to understand why Irish victims of these types of injuries enjoy one of the highest rates of compensation in Europe and 4.4 times that of England and Wales.

A former President of the High Court, however, has warned that the system in Ireland is open to abuse because the chances of a fraudulent claimant being prosecuted for making a false or exaggerated claim was “virtually zero”.

Meanwhile, we are all financing this system with higher insurance premiums virtually every year we renew our motor insurance policy.

Learn more about personal injury claims in Ireland, how awards are assessed, court proceedings, what are general damages, special damages, how does the Injuries Board work, and more.

The Critical Importance of Bringing Your Case in the Correct Court-the Differential Costs Order

differential costs order

Choosing which Court to pursue your legal proceedings in is an important decision with a potentially costly outcome if you pursue your cause of action in the wrong Court. Two recent cases illustrate this:

  1. Moin -v- Sicika and
  2. O’Malley -v- McEvoy

Two personal injuries cases were brought in the High Court but the awards were within the Circuit Court scale. The plaintiff was awarded costs on the Circuit Court scale but the Judge refused the defendant’s request for a differential costs order.

The defendant appealed this decision to the Court of Appeal and succeeded in getting a differential costs order.

This order allows the Judge who makes the award of damages to the plaintiff on the lower court scale to order that the plaintiff pay the difference between the costs actually incurred by the defendant and those that would have been incurred if the case was brought in the correct court.

The Judge can measure these costs or order that they be taxed and the differential costs provision also provides for a set-off against the plaintiff’s costs.

The Courts Act 1981, as amended by the Courts Act, 1991, sets out the differential costs order power as follows:

“Limitation on amount of plaintiff’s costs in certain proceedings.

17.—(1) Where an order is made by a court in favour of the plaintiff or applicant in any proceedings (other than an action specified in subsections (2) and (3) of this section) and the court is not the lowest court having jurisdiction to make an order granting the relief the subject of the order, the plaintiff shall not be entitled to recover more costs than he would have been entitled to recover if the proceedings had been commenced and determined in the said lowest court.

(2) In any action commenced and determined in the High Court, being an action where the amount of damages recovered by the plaintiff exceeds £25,000 but does not exceed £30,000, the plaintiff shall not be entitled to recover more costs than he would have been entitled to recover if the proceedings had been commenced and determined in the Circuit Court, unless the judge hearing the action grants a special certificate, for reasons stated in the order, that, in the opinion of such judge, it was reasonable in the interests of justice generally, owing to the exceptional nature of the proceedings or any question of law contained therein, that the proceedings should have been commenced and determined in the High Court.

(3) In any action commenced and determined in the High Court, being an action where the amount of the damages recovered by the plaintiff exceeds £5,000 but does not exceed £15,000, the plaintiff shall not be entitled to recover more costs than whichever of the following amounts is the lesser, that is to say, the amount of such damages or the amount of costs which he would have been entitled to recover if the action had been commenced and determined in the Circuit Court.

(4) It shall not be lawful for rules of court to contain or impose any restriction on the amount of costs recoverable by any party from any other party in any action or other proceeding, but nothing in this subsection shall prevent the insertion in rules of court of a restriction on the amount of the costs recoverable which is identical with a restriction imposed by this section nor the fixing by rules of court of the amount recoverable by any person as and for the costs and expenses incurred by him in the doing of any specified thing in any particular form of action or other proceeding.

(5) (a) Where an order is made by a court in favour of the plaintiff or applicant in any proceedings (not being an appeal) and the court is not the lowest court having jurisdiction to make an order granting the relief the subject of the order, the judge concerned may, if in all the circumstances he thinks it appropriate to do so, make an order for the payment to the defendant or respondent in the proceedings by the plaintiff or applicant of an amount not exceeding whichever of the following the judge considers appropriate:

(i) the amount, measured by the judge, of the additional costs as between party and party incurred in the proceedings by the defendant or respondent by reason of the fact that the proceedings were not commenced and determined in the said lowest court, or

(ii) an amount equal to the difference between—

(I) the amount of the costs as between party and party incurred in the proceedings by the defendant or respondent as taxed by a Taxing Master of the High Court or, if the proceedings were heard and determined in the Circuit Court, the appropriate county registrar, and

(II) the amount of the costs as between party and party incurred in the proceedings by the defendant or respondent as taxed by a Taxing Master of the High Court or, if the proceedings were heard and determined in the Circuit Court, the appropriate county registrar on a scale that he considers would have been appropriate if the proceedings had been heard and determined in the said lowest court.

(b) A person who has been awarded costs under paragraph (a) of this subsection may, without prejudice to his right to recover the costs from the person against whom they were awarded, set off the whole or part thereof against any costs in the proceedings concerned awarded to the latter person against the first-mentioned person.

(6) In this section ‘relief’ includes damages.”.

The Court of Appeal held that it was incumbent upon a Judge where an award is made on the lower court scale to make a differential costs order unless there is a good reason for not doing so.

The Court of Appeal also noted it is necessary for the Plaintiff to pursue his case in the lowest court that can award what is reasonable in the circumstances of the case and if he does not do so then there is a serious costs risk.

In these cases the defendant had written to the Plaintiffs telling them that they believed the correct Court for the case was the Circuit Court and they would seek a differential costs order under under s. 17(5) of the Act of 1981 if the Plaintiff succeeded with his claim.

Read the full decision of the Court of Appeal here.

The takeaway is you need to exercise caution in which case you choose to pursue your case.

Buying Property? Why You Need to Know About Certificate of Title

Certificate of Title

Are you thinking about buying a residential property? Or a commercial property?

If you are you should know about the Certificate of Title system in conveyancing in Ireland.

Let’s take a look at how it works, shall we, and what it might mean for you as a purchaser?

Good marketable title

If you are not a cash buyer and you are borrowing from a bank your solicitor will have to give the bank a ‘solicitor’s undertaking’. This is an undertaking to obtain good marketable title to the property.

Once good marketable title is obtained the sale will complete and the solicitor will send in the title documents to the lender. The solicitor will then give a Certificate of Title and the bank will rely on this rather than the solicitor’s undertaking and the lender will hold onto the documents of title.

Once the bank’s mortgage is secured on the property and good marketable title has been obtained then the bank will be able to move on the property if there is a default on the loan.

It is a rare enough occurrence in Ireland, quite frankly, but when the bank does repossess a property they want to know they can sell it without any major title problems.

And they will already have the solicitor’s certificate, which certifies title, and on which they will rely.

If any problems then arise in relation to the sale of the secured property the solicitor who certified titled will have a major problem as the bank will be able to pursue him/her for professional negligence if he failed to notice a major title defect with the property.

How does this affect you?

You may be happy to proceed with the purchase of a property but your solicitor may not if there is a problem which will affect his ability to give an undertaking to obtain good marketable title and to certify title later on.

Problems which would concern a solicitor would be issues such as easements, rights of way, planning permission issues, building regulation problems, septic tanks on someone else’s property, no certificate of compliance from an architect/engineer, and so forth.

Minor issues which might be flagged up in a structural survey may not cause much concern, but the issues would need to be genuinely minor.

Qualification on title

If any of these serious issues arise the solicitor will write to the lender and state that he proposes qualifying his undertaking and certificate of title due to the problem he has encountered and he will ask the bank to accept this qualification and confirm its approval.

The lender may approve or may not agree. If the lender does not agree then the purchase cannot proceed.

The key point to understand is that if you are buying property and there is a lender involved and there is a problem with the title documents to the property the decision to proceed is not yours alone.

Because the solicitor will also be putting his professional indemnity insurance on the line and will naturally wish to have a say.

Without your solicitor giving an undertaking to the lender in the first place and later providing a certificate of title the lender will not advance your loan for completion.

GDPR Data Protection Legal Actions in Ireland-the Essentials

gdpr legal actions

 

Were you worried in the lead up to GDPR?

Has the danger passed? Are you just keeping the head down and hoping for the best?

Are you in a good place with respect to compliance or do you still have some concerns but hope the fears generated were exaggerated?

Just to remind you new regulations concerning personal data protection came into force in the EU from 25th May, 2015: the GDPR regulations.

What has happened since then? Was the fear and loathing justified? Was it another “Y2K” scare-all hat and no cattle-or is it too early to decide?

Firstly, GDPR came into effect in Ireland 24 hours after the commencement of a new data protection act, the Data Protection Act, 2018. There is a certain degree of trepidation amongst data controllers and processors that this new law will lead to a significant increase in the number of legal cases arising as a result of breaches for the law now allows data subjects bring civil actions for compensation.

Collective Actions

Data subjects can also now authorise not for profit organisations to bring complaints and act on their behalf. This kind of “class” action is a new development in Ireland and is likely to be availed of when there is a significant breach of personal data on a wide scale affecting a large number of individuals.

Two of these not for profit type organisations, NOYB (‘None of Your Business’) in Austria and La Quadrature du Net (‘La Quad’) filed complaints in some European countries against large tech companies within a short time of GDPR coming into effect. There is nothing stopping them from popping up in Ireland.

Right to Compensation and Damage

The right to compensation and damage is set out in regulation 82 which states,

Right to compensation and liability

1. Any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered.

2. Any controller involved in processing shall be liable for the damage caused by processing which infringes this Regulation. A processor shall be liable for the damage caused by processing only where it has not complied with obligations of this Regulation specifically directed to processors or where it has acted outside or contrary to lawful instructions of the controller.

3. A controller or processor shall be exempt from liability under paragraph 2 if it proves that it is not in any way responsible for the event giving rise to the damage.

4. Where more than one controller or processor, or both a controller and a processor, are involved in the same processing and where they are, under paragraphs 2 and 3, responsible for any damage caused by processing, each controller or processor shall be held liable for the entire damage in order to ensure effective compensation of the data subject.

5. Where a controller or processor has, in accordance with paragraph 4, paid full compensation for the damage suffered, that controller or processor shall be entitled to claim back from the other controllers or processors involved in the same processing that part of the compensation corresponding to their part of responsibility for the damage, in accordance with the conditions set out in paragraph 2.

6. Court proceedings for exercising the right to receive compensation shall be brought before the courts competent under the law of the Member State referred to in Article 79(2).

The game changer in this regulations is the reference in subsection 1 to “material or non-material damage”.

Up to this point you had to show you had suffered actual loss or damage in Ireland to be compensated, but you could not be compensated for non-material damage.

You will also see that subsection 1 refers to “controller or processor”. Prior to this only the controller could be held liable but now a processor can be also named as a defendant.

Article 78 sets out the right of the data subject to sue-that is, a judicial remedy. It states,

Article 78

Right to an effective judicial remedy against a supervisory authority

1. Without prejudice to any other administrative or non-judicial remedy, each natural or legal person shall have the right to an effective judicial remedy against a legally binding decision of a supervisory authority concerning them.

2. Without prejudice to any other administrative or non-judicial remedy, each data subject shall have the right to a an effective judicial remedy where the supervisory authority which is competent pursuant to Articles 55 and 56 does not handle a complaint or does not inform the data subject within three months on the progress or outcome of the complaint lodged pursuant to Article 77.

3. Proceedings against a supervisory authority shall be brought before the courts of the Member State where the supervisory authority is established.

4. Where proceedings are brought against a decision of a supervisory authority which was preceded by an opinion or a decision of the Board in the consistency mechanism, the supervisory authority shall forward that opinion or decision to the court.

This right to bring a data protection action in Ireland is set out in section 117 of Data Protection act, 2018. This action is founded on tort-that is, a civil wrong, and can be instituted in the Circuit Court or High Court.

Section 117 obliges the plaintiff data subject to prove that

his or her rights under a relevant enactment have been infringed as a result of the processing of his or her personal data in a manner that fails to comply with a relevant enactment

The critical change now is a data subject can sue for material and non material damage and non material damage is set out in recital 85 as follows:

A personal data breach may, if not addressed in an appropriate and timely manner, result in physical, material or non-material damage to natural persons such as loss of control over their personal data or limitation of their rights, discrimination, identity theft or fraud, financial loss, unauthorised reversal of pseudonymisation, damage to reputation, loss of confidentiality of personal data protected by professional secrecy or any other significant economic or social disadvantage to the natural person concerned

You will see from regulation 82 above, section 2, that the controller and processor will be held liable where they are not compliant with the regulations; it is irrelevant whether they were negligent or at fault in any way.

How much compensation?

It is too early to say what level of compensation Irish courts will award, especially for non material damage such as damage to reputation or unauthorised reversal of pseudonymisation or loss of confidentiality.

Clearly, from the perspective of a controller or processor the smart thing to do is try to ensure that there is no breach of personal data rights in the first place. However, it is vital that a breach is notified to the Data Protection Commissioner within 72 hours of becoming aware of the breach as the Act refers to doing so “without undue delay”.

Section 85 Data Protection Act 2018 states:

85. Where a processor becomes aware of a personal data breach, the processor shall notify the controller on whose behalf the data are being processed of the breach—

(a) in writing, and

(b) without undue delay.

Further reading:

The General Data Protection Regulation (GDPR) in Ireland-the Essentials

Data Protection Breaches-Are You Entitled to Damages?

 

What You Don’t Know About Me (and the Most Important Lesson I’ve Learned)

terry gorry

This is my real story.

Not the official, sanitized version on the About Page of my handful of blogs/websites.

But the real story of a moment of crisis-the property crash in 2007-which threw my life completely out of kilter and was, literally, life and career changing.  

You might learn something from it, and avoid some of the mistakes I made. In fact, I firmly believe you should learn something from my story, especially if…

Wait. Every decent story has a beginning, a middle, and an end.

Let’s start at the beginning.

Ready? Let’s go.

The beginning of my business life

My business/work life really started when I was 23.

Prior to this I had done a B. Comm degree in U.C.D. and had very reluctantly begun to study for professional accountancy exams. I say ‘reluctantly’ because I viewed being an accountant as being a scorekeeper, not a player.

And I wanted to be a player.

In 1986 I bought a shop in Dublin with my brother and I have been self employed ever since (apart from a very brief period which I cannot go into for legal reasons).

I have worked extremely hard since then-in retail shops, newsagents, convenience stores, property development/construction. I even owned a pub for a while. And held an auctioneer’s licence.

I bought sites, flipped them, bought shops, drove the turnover to the maximum and sold as close to the top of the curve as possible.

I bought a pub and stripped out the 7 day licence, looked for permission for redevelopment of the building, was refused, sold the building anyway and sold the licence to Lidl or Aldi (I can’t remember which, but was just thankful to get out of the licensed trade before the more restrictive drink driving laws decimated the trade).

I’ve hand washed cars, manually dipped fuel storage tanks, and employed hundreds over the years.

I’ve also worked on a building site supervising the construction of a small block of apartments on a site I bought.

I drove the teleporter and even passed the test to obtain a licence to drive forklifts and teleporters. (I sometimes joke that I’m the only solicitor in Ireland with a teleporter licence.)

I lifted buckets of “muck” (mortar) to the blocklayers, pallets of tiles to the roofers, scaffolding to the scaffolders, and switched the forks for a big bucket in order to level the ground around the site.

Pressure?

I’ve felt pressure, too, but…

Pressure can mean different things to different people, depending on where they are in life at a given point in time.

For me, pressure was lifting a pallet of roofing tiles up 2.5 stories to 6 Lithuanian roofers, watching them scurry like ants left and right as the entire machine, with forks extended, and pallet of tiles swayed from side to side in the wind and rain, trying to peer out through a filthy windscreen stained on the inside with cigarette smoke, and rain and muck on the outside that the one functioning wiper was trying, and failing, to keep clear.

Pressure was running a filling station and running out of petrol on the Friday of a bank holiday weekend with the delivery truck stuck in heavy traffic, or worse-only delivering on Saturday.

Pressure was telling a man that the reason his new 5 series diesel BMW won’t start is because my newest member of staff has just pumped it full of petrol.

Pressure was worrying about not having money for food next week and knowing that social welfare is not an option because you’ve been independent, self sustaining, and self employed for over 20 years.

Pressure was going back to college to study law when you’re 42, spending your last few bob on the books you need, and having to pass 8 exams within 12 weeks when it normally takes student colleagues a few years.

Because the choice was…there was no choice.

For you, now, pressure will mean something completely different.

It could be pressure in your job from a harsh, bullying boss, pressure in your business from the need to get in outstanding debts, pressure from the banks, pressure to make ends meet in your household each week, pressure of raising a family, pressure of keeping a roof over your head and food on the table.

And sometimes you wonder about things, about how things take a turn from time to time. Does fate and serendipity and chance and luck and coincidence play any, or a critical, role?

I believe they do. Let me tell you a story.

I wind the clock back to the late 1987 or 88. I remember vividly driving across the city from Glasnevin to Walkinstown to have a chat with a lad from Mullingar in the same game as myself-retailing.

It was a Saturday morning and we discussed the pain in the ass that retailing was. That lad was Michael O’Leary (yes, Ryanair’s Michael O’Leary), and at the time I felt sorry for him because I could see his venture into retailing was not going to end well.

But because it didn’t he was forced to change direction and go back into accountancy, something we had both sworn we did not want to do. He became personal assistant to Tony Ryan and the rest is history.

O’Leary was given a chance and ran with it, made the most of it.

Sometimes described as one of Ireland’s greatest businessmen, people forget that he never actually started a business. Tony Ryan started Ryanair and ignored O’Leary’s advice when O’Leary told him to ‘close it down, it will put you on the road’.

I remember I later hurled abuse at the Late Late Show screen when he went on to try to rewrite history about this venture in retailing at Walkinstown roundabout  in conversation with Pat Kenny.

Anyway, I digress slightly.

I went on to make a good living and was financially comfortable at a relatively young age.

The middle-property crash

And then I lost everything.

The property crash, which started in 2007 and saw steady declines in property values for the next 5/6 years, wiped out over 20 years of my hard work and capital.

A complete wipe-out, just like many people suffered in the Irish economy.

What was I to do? I was 42, hadn’t worked as an employee for over 20 years and had lost all my capital.

I started studying law in my garage at home and at Griffith College, passed the entrance exams-the FE1s- to the Law Society, got an apprenticeship as a trainee solicitor from my own solicitor, and qualified a couple of years later as a solicitor.

That apprenticeship was my first job in over 20 years and the sense of claustrophobia in my little room in a house overlooking a suburban back garden in Dublin was something I had never experienced. I had gone from being a successful self employed business man employing a good number of employees and dealing with contractors and subcontractors on my own building site and running retail businesses for over 20 years, to this.

I had a genuine urge to just go home again, because I thought I would never stick it.

But I hung in there and got used to my new circumstances. And what helped me was the most important lesson that I will tell you about later.

Within one month of qualifying as a solicitor I set up my own solicitor’s practice.

The end?

Now?

Now, I’m on the way back.

Slowly. Step by step. Tiny steps, coming back from the brink.

Hustling and grinding and working hard in my solicitor’s practice.

Now I laugh when someone accuses me of not understanding their pain because I just sit in a nice, warm office wearing a suit and dispensing professional advice. They don’t know my back story.

I chuckle when an employer tells me I don’t know what it’s like to be in a cash flow difficulty, or have a difficult employee who is causing disruption in the workplace.

I laugh when someone tells me they have lost money in a property investment and I don’t really understand, how could I?

Or they are having difficulties with the banks or tenants or employees or suppliers.

I have faced all these difficulties, so I have a good understanding. I have a fair idea, I can assure you, of the ups and downs that life can throw at you.

The most important lesson

But the one lesson I learned from it all? I think I discovered the most important tool anyone can have.

Put succinctly: the right attitude.

There is probably fancy ways of describing what I am talking about but I firmly believe the most important tool you can have in meeting adversity is the right attitude.

Choosing your attitude, and how you react to your circumstances, is within your power. Not the circumstances-you have no power over those-but how you react is within your gift.

This is what Dr. Frankel discovered when he observed the inmates in a number of concentration camps during the second world war. Frankl’s book, “Man’s Search for Meaning” can be summarised in this quotation:

Everything can be taken from a man but one thing: the last of the human freedoms—to choose one’s attitude in any given set of circumstances, to choose one’s own way.”

(I’ve written about Frankl before in this article, in which I write about a common mistake I see many employees make).

Anyway, I hope my story and what you probably didn’t know about me might be useful for you.

And the lesson I learned from my own experience and the experience of concentration camp survivors will serve you well, if you choose it.