IS THIS THE END OF DRUNK DRIVING?

It’s a sobering thought to think that in a few years time, the number of drink driving offences should be reduced to zero.

In July 2008, Finland became the first country in the EU to legislate on Alcolocks. This is a locking device which effectively immobilises the car, if the driver’s breath contains alcohol. Since Finland introduced legislation under this heading, Sweden and France have followed on. The Swedish Transport Agency say that they intend to fit 75% of all government vehicles with an Alcolock by the end of this current year. 75,000 voluntarily installed Alcolocks are in place in vehicles used in commercial and public transport in Sweden.

What do you think - will the day ever arrive when the latest model of a particular car will come with an Alcolock as standard?   Drink up ladies and gentlemen, the end is nigh.

Kevin Brophy 

31.07.12

European Court to hear abuse case against the State

Full text available at http://www.irishtimes.com/newspaper/ireland/2012/0714/1224320063062.html

A woman who was sexually abused as an eight-year-old by her teacher has been told by the European Court of Human Rights that it will hear her appeal against an Irish Supreme Court decision that the State was not legally liable for the abuse she suffered.

The mother of two, Ms. Louise O’ Keefe, from west Cork, had sued the Department of Education over abuse she suffered at the hands of teacher Leo Hickey at Dunderrow National School in Co Cork in the early 1970s, but the High Court in 2006 and Supreme Court in 2009 ruled the State was not liable.

Her solicitor lodged appeal papers against the Supreme Court decision in 2009  outlining her arguments for appeal with the European Court of Human Rights.

However, the State opposed the admission of the case before the European Court.

The State argued that as Ms. O’ Keefe had failed to sue the bishop, who was patron of Dunderrow National School and owned it through trustees, Ms O’Keeffe was precluded from claiming she had exhausted all her legal remedies in Ireland.

The European Court of Human Rights ruled Ms O’Keeffe was entitled to choose from a number of domestic remedies in Ireland to address her grievance and that because she opted to sue the State, she was not required to sue the bishop.She chose to pursue to the Supreme Court an action alleging State responsibility for the abuse on the basis of vicarious liability and the court considered this was a reasonable choice. The judges pointed out that Ms O’Keeffe’s case was a lead case in Ireland and the eventual outcome could not have been said to be clearly foreseeable and if successful would have involved a finding of State responsibility and award of damages against it.

The outcome of this case will be followed closely as after the original Supreme Court judgment, over 200 other abuse victims dropped or postponed their actions.

Her solicitor commented on  the decision by the European Court to admit the case for hearing and remarked on how it was highly significant in that it did not accept the State’s arguments that Ms O’Keeffe had failed to exhaust all legal remedies in Ireland.

If Ms. O’ Keefe was successful in her case, it might lead to a raft of appeals from abuse victims in similar situations who have been denied compensation or remedies from the state as it was thought that the abuse occurred in church -  run or independent schools and was not the responsibility of the state.

At Brophy Solicitors, we note the importance of this decision. This may have implications for many others who were prevented or did not pursue their action in the past due to fears that they could not be successful due to the Supreme Court decision which had gone before. It may be the case that many of these people may be finally able to get the justice that they deserve.

Brophy Solicitors

16.07.12

Bus firm loses appeal in assault case

Full text available at http://www.irishtimes.com/newspaper/ireland/2012/0714/1224320064040.html

Bus Éireann has lost a claim that it should not be held vicariously liable for an assault committed on a cyclist on a footpath by one of its drivers.

The company had brought High Court proceedings after Scott Alexander Burns (38), The Orchard, Greenwood, Ayrfield, Dublin, was awarded €15,000 damages against Bus Éireann by Judge Jacqueline Linnane at Dublin Circuit Civil Court last January.

The action was brought by Mr.Burns due to an assault where Bus Eireann driver William Murray bent his right thumb back and caused him to tear muscles and ligaments.

Bus Eireann denied they were responsible for the actions of Mr. Murray and brought an appeal to the High Court arguing that they should not be vicariously liable for the actions of the driver as it occurred on a public footpath and was not associated with his duties as a driver. They claimed that it was outside the scope of his employment.

However, High Court president Mr. Justice Nicholas Kearns said the driver had just about been acting in the course of his employment when the assault occurred. Even though, they were not sanctioned by his employer, Bus Eireann were found to be vicariously liable.

Brophy Solicitors advise employers in Ireland to take notice of this judgment as it highlights the importance of ensuring that employees behave in an appropriate manner when they are carrying out their duties in the course of their employment. Employers must set out clearly to their employees  the kind of behaviour and conduct that is expected of them when they are on their employer’s premises, operating their employer’s machinery or vehicles, or representing their employer in a public place through their actions or by wearing their company uniform. Employees should be told that if they do anything outside of the scope of their employment that it could result in serious consequences.

Brophy Solicitors

16.07.12

Boy (7) awarded €17,700 damages

Full text available at http://www.irishtimes.com/newspaper/ireland/2012/0711/1224319793312.html

A boy, who suffered an injury to his lip in a creche when he was three years old has been awarded €17,700 damages in the Circuit Civil Court.

Bernard Rogan, counsel for Luke Hyland, Russell View, Tallaght, now aged seven, said the boy had run into the back of a chair on December 19th, 2008.

The judge heard that Mr Rogan, at an earlier hearing, had convinced the court not to approve a lower assessment of the injuries board.

Mr Rogan said he had since negotiated an improved offer of €17,700 together with full legal costs and a further €1,137 towards fees and expenses.

The boy had made a full recovery apart from a mildly noticeable permanent mark on his lip.

Brophy Solicitors

11.07.12

Boy secures €5.5milion settlement

Full text available at : http://www.irishtimes.com/newspaper/breaking/2012/0703/breaking56.html

A young boy who is quadriplegic after being hit by a car near his home has secured €5.5million in settlement of his High Court action recently.

Ian was just five years old when the accident happened at Ballybrown, Clarina, Co Limerick, on September 25th 2008.

His mother Orla  told the court the settlement meant the family would not be “at the mercy of the HSE” in seeking basic equipment and facilities for Ian who requires continuous care.

Patrick Hanratty SC, for the child, said, on the day of the accident, Ian, then in senior infants, was leaving home with his mother to go to a dancing class at his school.

His mother returned briefly to the house to change something and Ian had uncharacteristically crossed the road by himself with the family dog, counsel said. He made it to the far pavement but then appeared to have bent down, possibly to pet the dog.

It was believed the boy’s head may have protruded slightly into the roadway as he bent down when the collision occurred, counsel said. Liability was an issue in the case, he added.

Through his mother, Ian had sued the driver of the car, Niamh Cusack, of Carraig, Clarina, Co Limerick, claiming, among other matters, she failed to pay attention to what she was doing. The claims were denied.

Ian suffered catastrophic injuries leaving him a spastic quadriplegic with cerebral palsy, it was claimed. He is completely dependent, cannot speak and is prone to spasms.

In July 2010, he was admitted to a respite facility, the St Joseph’s Foundation in Charleville, Cork, after his parents lobbied government representatives.

His counsel said it was intended that St Joseph’s, which is funded by the HSE and through charitable donations, should be a long term home for children but funding has been reduced, as have staff numbers, so he can only be cared for there during the week.

The family stated that they were happy with the settlement because it meant the family would not be at “the mercy of the HSE’’ any longer.

Approving the settlement for nine year old Ian Cusack today, Ms Justice Mary Irvine again urged the introduction of a statutory scheme for periodic payments for victims of catastrophic injuries aimed at ensuring all their future care needs will be met.

The current system of lump sum payments means “we are not protecting the welfare of the young and most vulnerable in society”, she said.

This was also highlighted recently in the case of a 10 year old boy Cullen Kennedy who was awarded €11.5 Million after a car crash which left him severely disabled. In this case, in her judgment, Judge Mary Irvine called for the "urgent and prompt" attention to the need for laws providing for periodic payments in such cases. This is under discussion at the moment where the President of the High Court Mr. Justice Nicholas Kearns wants to change these lump sum payments and replace them with periodic payments. This would involve the courts making periodic payments to compensate victims where long-term permanent care was required. It would mean that the court would not be put in a position where they have to put a figure on a victim’s injury.

In February 2010, a working group on Medical Negligence Litigation and Periodic Payments was established. It was chaired by Judge John Quirke who has recently retired but is also made up of Judge Mary Irvine, an adviser of the Justice Minister, solicitors, barristers, representatives from the MIBI, the State Claims Agency and the Irish Insurance Federation and Patient Focus.

The group have called for the state to introduce legislation to allow the court to make these periodic payments.

At Brophy Solicitors we have seen in many of our Personal Injuries cases, the difficulty in putting a figure on how much a victim should be entitled to as it is often difficult to estimate the impact of an accident on their future earnings or health care requirements. Legislation on periodic payments would ensure that all factors are taken into consideration and that the victim is compensated in a fair and just manner for the distress and upset which their accident has caused to their lives and that of their families.

Brophy Solicitors

09.07.12

Lawyers should not act for two sides in property deals - report finds

Full text available at: http://www.irishtimes.com/newspaper/ireland/2012/0709/1224319635301.html

A Law Society task force has decided that solicitors should not be permitted to act for both sides in a property transaction, except in limited circumstances provided for in law. . Its report will be discussed by the council of the society next Friday.

The prohibition should extend to voluntary transactions between, for example, family members where a parent signs a home over to a child, the task force concluded. These are permitted in many jurisdictions. The task force was set up in light of concerns over the same solicitor acting for both purchaser and vendor in conveyancing transactions. The practice was also the subject of a number of complaints to the Law Society.

The task force examined the practice in a large number of other jurisdictions, in the common and civil law traditions. This confirmed every other common law jurisdiction, and most civil law ones, had a prohibition on the same solicitor acting for both sides in a property transaction.

Many of these jurisdictions permitted a range of exceptions, but the task force concluded most such exceptions were unjustified.

On the issue of voluntary transfers of property, usually between family members, the task force said the case for the continuation of allowing one lawyer to act for both sides was undermined by a survey by the Health Service Executive and UCD which found 94 per cent of financial abuse of the elderly in Ireland was perpetrated by family members. Example s of financial abuse include forcing or misleading  an elderly relative   in to signing over their interest in the family home.

The task force did not see how one legal adviser could give independent or impartial advice to donors and their donees.

It recommended that in the case of voluntary transfers and transfers below market value there should be a total prohibition on solicitors acting for both sides.

On transfers for market value, the task force noted there had been adverse judicial comment on the lack of a Law Society prohibition on one lawyer acting for both sides. There should be a prohibition in such cases, it stated, except where both parties were associated companies or were “qualified parties” under EU regulations.

Brophy Solicitors

09.07.12

Judge asks lawyers to take defamation defence for free

Full text available at http://www.irishtimes.com/newspaper/ireland/2012/0706/1224319511398.html

A JUDGE yesterday appealed to lawyers to consider giving their services free to a woman traffic warden who is being sued by a Donegal county councillor.

The judge refused to go ahead with the defamation case because the defendant did not have legal representation. The judge said the woman’s rights were not being respected if she was refused legal aid in such a case.The judge said he believed Ms McCafferty, of Main Street, Bundoran, was being deprived of her human rights without legal representation.

Ms McCafferty was defending an accusation by Cllr Seán McEniff that she had defamed him in a letter sent to Donegal County Council on January 5th, 2009, which made serious criticisms of him.

When the case was called at Donegal Circuit Civil Court, Ms McCafferty, who represented herself, said her application for free legal aid had been rejected for the third time, despite the judge previously urging her to seek it.

Peter Nolan, counsel for Mr McEniff, who is also a member of Bundoran town council, said Ms McCafferty had not been denied free legal aid because of her means but because, under Irish law, free legal aid was not available for the defence of defamation.The judge said that seemed unfair to him and questioned whether the law was “in violation of the European Court of Human Rights”.

The Judge refused to allow the case to proceed. The Judge did not see how the defendant could take part in this case without legal aid as it put her at a serious disadvantage.

The judge noted that it was his duty to ensure the parties were on a level playing field.

The judge adjourned the case again, until the next Donegal town session, and advised Ms McCafferty to explore her options, including approaching a Free Legal Advice Centre or Citizens’ Information bureau.

He said another option was to approach a solicitor to take on the case pro bono in the interests of justice. He hoped some solicitors in the Donegal area might be willing to give her the benefit of their expertise.

Brophy Solicitors

06.07.12

Abuse victim contests transfer of property to former teacher's wife

Full text available at http://www.irishtimes.com/newspaper/ireland/2012/0706/1224319511364.html

A woman who was awarded €400,000 damages last year after a judge found she was sexually abused by her Irish dancing teacher has brought a High Court challenge to the man’s transfer of property into his wife’s name.

Dana Doherty (42) claims the transfer of the ownership of two properties by Michael Quigley to his wife, Alice, was an attempt to defeat her right to obtain the damages. The properties are the family home at Barnhill Park, Letterkenny, Donegal, and a one-third acre site at Meenagowan, also in Letterkenny.

Ms Doherty, a national schoolteacher, is seeking a High Court order setting aside the transfers, made eight and 12 years ago. She has disputed Mr Quigley’s claim that he is a man of no means living on a pension. She claims he got a substantial payment when he took voluntary redundancy as a printer with the Derry Journal in the late 1990s, and had also made good money from his dancing classes in Derry and Letterkenny.

Mr Quigley (68) argues that Ms Doherty is not entitled to challenge the transfer, which, he says, was effected to get a loan to extend the family home at a time when he was retired and could not get a loan in his name.

He claims the transfer was also carried out before Ms Doherty brought the case which resulted in the €400,000 award.

Ms Doherty, he also claims, is not a creditor of his, which she must be to avail of the fraudulent conveyance law under which her challenge is brought.

The case opened yesterday before Mr Justice Paul Gilligan. The parties later consented to adjourning it to December to allow Mr Quigley’s appeal against the €400,000 award be heard by the Supreme Court. A stay on that award applies pending the appeal.

Brophy Solicitors

06.07.12

Equality Tribunal fines property management company for Traveller discrimination

Full text available at http://www.pila.ie/bulletin/june-2012/27-june-2012/equality-tribunal-fines-property-management-company-for-traveller-discrimination-new-traveller-publication-sponsored-by/

A recent Equality Tribunal decision came to our attention. The parties involved were Maughan v. Grattan Lodge Management Company and the Equality Tribunal found that the applicant had been discriminated against and harassed by her management company in violation of the Equal Status Acts.

Ms. Maughan, the complainant, was represented by Siobhan Phelan on behalf of the Irish Traveller Movement.

The complainant contrasted her treatment with that of another tenant in an effort to display the discrimination that had taken place against her on the basis of her being a member of the Traveller community. She also claimed that power was cut to her apartment during winter, as part of this less-favourable treatment.

The Equality Officer, in considering the claims of discrimination and harassment, held that the actions taken by the management company were motivated by the fact that she was a Traveller.

On balance, the Officer preferred the applicant’s evidence, but said that “even if I were to prefer the evidence of the respondent in every respect, the degree of leniency and patience the respondent showed with respect to [the other] tenant contrasts vividly with the treatment of the complainant”

The Officer found in favour of Ms Maughan and awarded her €6250, as well as ordering the respondent to undergo a course of training on the Equal Status Acts, with a particular emphasis on the Traveller ground.

The applicant was represented by Siobhan Phelan BL, who was instructed by the Irish Traveller Movement.

We welcome the decision of the Equality Tribunal. It highlights the difficulties and hardship which travelers often face in securing appropriate accommodation. It requires that proper equality training be provided in the area of equal status on all grounds and ensures that claims of discrimination and harassment will be taken seriously and will not be tolerated.

Brophy Solicitors

06.07.12

Woman sues over pain 'after 40 minutes at hair salon basin'

Full text available at: http://www.independent.ie/national-news/courts/woman-sues-over-pain-after-40-minutes-at-hair-salon-basin-3158352.html

A thirty five year old woman sued Peter Mark hair salon recently for neck pain she claimed was caused after sitting at a wash basin for a long period.

 Ms Dunne said in the Circuit Civil Court that she felt pain in her neck a few hours after she had left the salon on Grafton Street, Dublin, on May 3, 2008. She said she developed pain in her neck after allegedly sitting for 40 minutes at a washing basin in a Peter Mark hair salon.

She told her barrister William Martin-Smith that the salon had been "extremely busy" and that she had been seated at the basin with her head backwards for 40 minutes.

Ms Dunne said she had a hot towel treatment, during which her hair was wrapped in a wet towel, which was "really heavy".

The court heard, as the pain progressed through her left shoulder, she went to her GP who prescribed anti-inflammatory and pain-killers. She was treated with intramuscular injections while on holiday in Spain.

She sued Peter Mark for damages. The hair salon, which entered a full defence to Ms Dunne's claim, denied negligence.They denied that she was sitting at the basin for the 40 minutes as alledged and Counsel for Peter Mark said Ms Dunne had been seated at the basin for not more than 20 minutes.

The court was told Ms Dunne, of Holywell Dale, Feltrim Road, Swords, Co Dublin, had not complained to staff on the day.

Shortly after Ms Dunne had given her evidence, Mr Martin-Smith told the court the matter had been "resolved" and asked that it be put back for mention. It was ‘resolved’  on undisclosed terms after Ms. Dunne had claimed €38,000 in damages.

Judge Alan Mahon adjourned the case for two weeks to allow the court to further deal with the matter.

Brophy Solicitors

05.07.12