1. Talbot Hotel, Stillorgan, County Dublin
Personal Injury Claims and Health & Safety Legal Updates
2nd October 2019
Talbot Hotel, Stillorgan, County Dublin
Shay Fleming
BSc(AppSces)(Hons), BL, MA, MSc, DipSHWW(Hons), Member Institute of Physics, Chartered Physicist; Member Royal Society of Chemistry, Chartered Chemist; Accredited Mediator
Specialist Technical, Regulatory Compliance, Health & Safety, Scientific, Engineering Solicitor
Greg Ryan Solicitors 9, Upper Mount Street, Dublin 2 D02 K659
Tel:

2. Relevant Matters Regulatory, Prosecutions and Sentencing;
Update Personal Injury case law;
The Judicial Council Act 2019;
Insurance Costs;
Fraudulent Claims

3. Regulatory, Prosecutions and Sentencing Workplace Inspections and Investigations 2008 - 2018
Year
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
Total
16,009
18,451
16,714
15,340
13,835
12,244
10,719
10,880
10,478
9,934
9,830

4. Prosecutions and Sentencing 2018
Criminal Jurisdiction
Cases
Suspended Sentence
Probation of Offenders Act
Fines
Circuit Criminal Court 9 1
€696,872
District Court 6
€9,100
Total 15
€705,972

5. Prosecutions and Sentencing 2010 -2018
Criminal Jurisdiction
2010
2011
2012
2013
2014
2015
2016
2017
2018
Circuit Criminal Court 10 7 9 13 12
District Court 17 22 19 8 6
Total 27 32 20 28 16 21 15

6. DPP – V – Tony Kirwan Civil Engineering Contractors Ltd Kilkenny Circuit Court, 28th June 2018
The company pleaded guilty to three counts [(Section 8(2) + 2 Construction Regs]
Alleged failure to ensure safe system of work to protect workers from being struck by falling materials during trenching
Fined €200,000 on Section 8(2) and two Construction Regs counts TIC’d

7. DPP – V – McKeon Stone Ltd Kilkenny Circuit Court , 29th June 2018
Company pleaded guilty to Section 8(1) and 8(2)(a) count
Fined €175,000
Fatal injury
Failure to manage work practices
Work undertaken at the edge of a quarry face without harness, lanyard or fall protection measures

8. DPP – V – Un-named Individual 4th May 2018 , Letterkenny Circuit Criminal Court
 Employer pleaded guilty to Section 12 contrary to Section 77(2)
Failure to manage and conduct undertaking to protect non-employees from risks relating to a crane working close to overhead power lines or to ensure work was carried out safely in accordance with ESB guidelines.
Sentenced to 12 months imprisonment suspended for 12 months

9. DPP v Kilsaran Concrete Limited Trim Circuit Criminal Court, 18th February 2016
Kilsaran Concrete (Unlimited Company) pleaded guilty to one charge (Section 8(2)(a) in respect of failing to manage and conduct work activities, in particular, the manufacture of concrete kerbs in a wet-cast plant at the place of work in such a way as to ensure, so far as was reasonably practicable, the safety, health and welfare at work of their employees, in that employees were working inside the guarded safety area of the wet-cast production or casting line while the line was operational and as a consequence, an employee suffered personal injury and died.
Kilsaran Concrete was fined €125,000. The DPP sought a review of the sentence on the grounds of undue leniency and on 6 April 2017 the Court of Appeal increased the fine to €1,000,000.

10. Update Personal Injury case law
High Court personal injury awards are being significantly reduced or dismissed by the Court of Appeal.
Awards have been re-calibrated downwards.
Influences settlements.
Real potential to reduce legal costs.
Real potential to reduce insurance costs.

11. Personal Injuries Assessment Board 2018
33,371 Applications [up 0.8%]
12,112 Awards made
Motor Liability – 70%
Public Liability – 18%
Employer Liability – 12%
Total value of awards € million
Average Award - €24,649
Highest Award - €908,749
Average processing time – 7.2 months
Delivery costs – 6.1%

12. Personal Injuries Assessment Board 2010 – 2018 Awards
2010
2011
2012
2013
2014
2015
2016
2017
2018
Number of Awards
8,380
9,833
10,136
10,656
12,420
11,734
12,966
12,663
12,112
Total Amount (106)
€186.63
€209.83
€217.94
€243.46
€281.21
€268.45
€315.13
€315.04
€298.55

13. Personal Injury Cases Filed in 2018 [Court Services]
22,049 Personal Injury Summonses filed in 2018 (1.64% down 2017);
8,889 (including 1,338 medical negligence) in the High Court, (0.22% down on 2017);
12,193 in the Circuit Court, (2.43% down on 2017);
967 filed in the District Court, (4.35% down on 2017)

14. Levels of award by Court in Personal Injury Litigation
District Court up to €15,000
Circuit Court up to €60,000
High Court Unlimited
District Court and Circuit Court can award higher damages with the consent of the parties [Reduces Legal Costs

15. Personal Injury Cases 2017 -2018
Issued
Resolved
2018
2017
Decision
Settled
High Court
8,889
8.909
3,967
526**
3,879 31
Circuit Court
12,193
12,497
6,522
493
6,834
775
District Court
967
1,011
454
527
Total
22,049
22,417
10,943
1,019
11,240
806

16. Personal Injury Award
Circuit Court
2018
2017
€0 - €15,000
449
405
€15,000 - €60,000
783
666
€60,000 + 9 4
Total
1,241
1,075

17. Personal Injury Award
District Court
2018
2017
€0 - €7,500
258
248
€7,500 - €15,000
306
207
€15,000 + 4 2
Total
568
457

18. Personal Injury Award
High Court
2018*
2017*
€0 - €60,000
145
149
€60,000 - €199,999
174
170
€200,000 - €499,999 55 28
€500,00 + 50 53
Total
424
400
*Includes Medical Negligence

19. High Court Circuit Court District Court
High Court
Circuit Court
District Court
Amount Awarded
2018*
2017*
2018
2017
Lowest
€1,400
€2,405
€850
€1,000
€750
€500
Highest
€15,500,000
€15,000,000
€211,523
€78,000
€20,000
€22,945
Total
€148,935,686
€183,141,689
€23,596,553
€19,874,648
€4,536,733
€3,493,105**
*Includes Medical Negligence
**Figure understated in 2017

20. Niall Kampff v Minister for Public Expenditure and Reform [2018] IEHC, 371 [Twomey J, 25th June 2018]
Garda sustained bruising to his hand when he struck it against shelving while trying to arrest a suspect.
He didn’t require pain medication or physiotherapy;
Given anti-inflammatory medication and hand strapped and on sick leave for five days;
Made a full recovery;
Book of Quantum provides for minor hand injuries up to €21,700
Court said anything close to this could not be justified for bruising;
Court awarded €5,000

21. Niall Kampff v Minister for Public Expenditure and Reform [2018] IEHC, 371 [Twomey J, 25th June 2018]
Court summarised the principles laid down by the Court of Appeal and Supreme Court which Courts are obliged to apply to the calculation of general damages for personal injury
The relevance of the average of people in Ireland of €45,611 p/a to the calculation of general damages for pain and suffering
Awards must be proportionate to the cap an general damages of €450,000 for pain and suffering (catastrophic injuries such as paraplegia)
The effect of recent downwards “recalibration” by the Court of Appeal of awards of general damages for personal injuries
Summarised principles applicable to particular types of PI cases (injuries suffered by Gardai (Don’t go to PIAB, No incentive to settle witout hearing, and such injuries to Gardai must be heard in the High Court

22. Judicial Council Act 2019 [No. 33 of 2019
Some parts commenced on the 10th September 2019 (S.I. 457 of 2019
Personal Injuries Guidelines Committee
To draw up judicial guidelines fro damages.
Court of Appeal reducing damages by 50% may influence judicial thinking.
Sentencing Guidelines and Information Committee
Sentencing Policy review

23. Insurance Costs
Cost of liability insurance claimed to threaten the viability of certain businesses
Insurance Ireland reports losses of €379m between
Media reports of play centres allege cost of insurance increases between 100 – 300%
Political allegation of insurer profiteering
Insurers allege losses of €379m between 2015 – 2017
Oireachtas Public Hearings on insurance costs
Link between number of accidents, claims and awards

24. Fraudulent Claims Personal Injury; Loss of or damage to property
Fake documents supporting claims
Suspicion of false claims????
Report
Outline the allegation (Worker, visitor etc)
Outline all relevant facts including dates, times, location ;
Full details of “injured” party;
Witness statements;
CCTV (GDPR implications)

25. Fraudulent Claims Evidence
Witness statements / oral evidence / credibility of witnesses
Open and closed questions
Relevant objects;
Engineering reports / professional qualifications / opinion evidence
CCTV, Photographs etc
Is there sufficient evidence from a potential claimant to establish a claim in the absence of contradictory evidence;
Circumstantial evidence relating to motive, opportunity and conduct post event (playing sports)
Look for misleading information or misrepresentation of facts

26. Fraudulent Claims Civil Liability Act 2004
S14 Affidavit of Verification;
S 25 giving or dishonestly causes to be given false or misleading information to a solicitor in relation to personal injuries
Criminal Justice (Theft and Fraud Offences) Act 2001
Section 6 – Dishonestly making a gain or causing a loss by deception
Sections 25 – 29 relating to forger and false instrument offences
Conspiracy to defraud

27. Thank you for your attention and call us if you need assistance
Shay Fleming
BSc(AppSces)(Hons), BL, MA, MSc, DipSHWW(Hons), Member Institute of Physics, Chartered Physicist; Member Royal Society of Chemistry, Chartered Chemist; Accredited Mediator
Specialist Technical, Regulatory Compliance, Health & Safety, Scientific, Engineering Solicitor
Greg Ryan Solicitors
9, Upper Mount Street, Dublin 2 D02 K659
Tel: