Electric Scooters- Manual V Electric

 

Electric Scooters

Manual V Electric

 

 

Q. What is the definition of a mechanically propelled vehicle?

A. “A vehicle, means the propulsion of which is electrical”

 

Q. What is the definition of a manual scooter?

A. If the electric scooter requires pedalling or an initial manual scoot to take off and the motor only kicks in once the scooter is already in motion, it is not classified as a mechanically propelled vehicle.

 

Q. What is the definition of an electric scooter?

A. If the electric scooter can be propelled from a stationary position by motor alone it is classed as a mechanically propelled vehicle.

 

Q. If a scooter is classed as a mechanically propelled vehicle, what does that mean?

A. If a scooter falls under the classification of a category of a mechanically propelled vehicle it falls under the Road Traffic Act 1961 as amended which means that the owner must ensure the scooter is road worthy, he or she must have a licence for the scooter, he or she must tax and insure the scooter, and he or she must wear a helmet.

 

There is much confusion surrounding models of scooters and there are calls for legislative change to incentives the use of electric scooters and to regulate what models can be used on footpaths and bicycle lanes.

It is currently illegal to ride scooters in bicycle lanes in Ireland and their use on footpaths is unfortunately very unclear.

In other EU countries such as Belgium electric scooters are regulated the same way as bicycles provided the electric scooters do not exceed a speed limit of 18km/h.

In France electric scooters can be used on footpaths if they do not exceed the speed of 6km/h, greater speed scooters are restricted to bicycle lanes and there are calls for new laws requiring users to hold insurance and a licence similar to what is required for small motorcycles in France.

In San Francisco electric scooters are banned on footpaths but can be used on bicycle lanes.

Conclusion

The conclusion of this is that the law in Ireland applies differently depending on the specifications of the model of the specific scooter. The regulations are currently grey on whether or not scooters can or cannot be used in bicycle lanes or on footpaths and clear regulation is required.

People using scooters who are not aware that they require a licence, tax and insurance require clarification and clear legislation if the scooter is deemed to fall under the classification of a mechanically propelled vehicle under the Road Traffic Act 1961.

Clear legislation needs to be endorsed in respect of the law surrounding electric scooters in Ireland.

 

 

 

 

 

Restrictive Covenants in employment contracts

Restrictive Covenants in employment contracts

 

A restrictive covenant is a clause in an employment agreement that restricts/ prevents the employee from competing with the business of the employer for an agreed period of time. The restrictions will usually relate to competing in direct competition i.e. dealing with or taking clients/ customers of their former employer and also enticing employees to come work for them. Whether these restrictive covenants are enforceable i.e. if an employee leaves his/her employer and then acts in breach of the restrictive covenant will the employer be able to get an order from a court enforcing the restrictive covenant.

The factors which will be taken into account by a court can be summarised as follows:

  1. Is the restriction reasonable both in terms of length of time and geography.
  2. The courts will not uphold the restrictive covenant if it prevents the employee from reasonably earning a livelihood i.e. preventing an employee from working for a competitor could theoretically prevent the employee earning a livelihood.
  3. If for instance the restrictive covenant is too broad in geographical terms .i.e. it restricts the employee from working in this business for the whole of Dublin this could be deemed to be overly restrictive if it is deemed unnecessarily obstructive to the employees chances of getting another job and unnecessary to protect the employer’s business.
  4. Similarly if the restrictive covenant is too long in duration i.e. generally longer than 12 months it may fall foul has been unreasonable.
  5. When drafting a restrictive covenant one has to ask the question as to whether the covenant is reasonably necessary to protect the employer’s business and is not unreasonably restrictive on the employee’s chances of getting another job in the same business.
  6. One final point to make is that if a restrictive covenant is inserted in a termination agreement where the employee has received an ex gratia payment from the employer, the courts are more likely to enforce such a covenant as the presumption will be that the employee has affectively received a payment which will in some way compensate for the possible restrictions on obtaining immediate employment in the same area of work.

 

For further information on this topic or any other employment matters please do not hesitate to contact Brendan Dillon or Niall MacCarthy on 01-2960666.

Legislative Changes – Personal Injuries

Legislative Changes – Personal Injuries

There have been recent legislative changes enacted pertaining to personal injuries litigation as follows:

  1. Section 8 Civil Liability and Courts Act 2004 – From 28 January 2019, there is an obligation to serve an initial letter of claim within 1 month and a court shall draw inferences from a failure to do so. All Personal Injuries Summons issued after this date must provide an explanation as to what reasonable cause exists to explain the delay where the letter is not served in time. A failure to do so may lead to adverse costs consequences.
  2. Section 14– From 28 January 2019, a failure by either the Plaintiff or Defendant to verify pleadings within 21 days of delivery of such pleading now includes new penalty provisions to allow a court draw inferences from the failure to do so and either make no order as to the payment of costs to the Plaintiff or deduct such amount from the costs that would be payable to the Plaintiff as it considers appropriate.
  3. Section 51C (New Provision) – From 3rd April 2019, a claimant who has not co-operated with the Injuries Board fully by providing information or documents as requested may be penalised. A failure to attend a medical assessment arranged by the Injuries Board may also result in the claimant being penalised.
  4. Section 13 (New provision)From 3rd April 2019, no requirement to lodge a medical report with the Form A application. A preliminary notice will issue but the formal process will not progress until the medical report and application fee is received. This is useful to stop the statute where no medical report is to hand.
  5. Section 50 (New provision) – From 3rd April 2019, the date of joining a new respondent to an application already made will be the date on which the statute stops for the purposes of Section 50 and not backdated to the date the original application was lodged. This is an important provision to remember when lodging an application against multiple Respondents and especially so when the statute is running out.

If you have any queries on personal injuries or litigation generally, please do not hesitate to contact Niall MacCarthy or Brendan Dillon of this office on 01 2960666 or niallmaccarthy@dillon.ie

7 Tips for seeking mediation

 

7 Tips for seeking mediation

 

  1. Discuss benefits of mediation with other party:
  • Control
  • Cost savings
  • Saves time
  • Agreed outcome
  • No appeal

2. Explore risks – Violence, anger, dominance

3. Decide on a mediator that is experienced and has a good reputation and check out costs and availability.

4. Try and agree the issues to be resolved at the outset.

5. Listen alot! Try and understand why other party has adopted the position he/she has taken.

6. Prepare for all meetings

7. Be prepared to compromise

If you have an interest in mediation and require more information on this process please contact Brendan Dillon on 2960666 who is an accredited Mediator.

7 point approach to helping our clients survive the family law journey

7 point approach to helping our clients survive the family law journey:

Our family Law client base has expanded substantially in recent years.

At the outset of any instruction we explain to our clients to the 7 part approach which we adopt in family law cases:-

  1. We try to take detailed instructions at the outset so as to form an early view on the various issues involved.
  2. We will review all available options with our client and advise on the option which we believe best suits their circumstances.
  3. We have a policy of copying our clients with all relevant correspondence and of sending you details of meetings with them so that we are clear on our understanding of their instructions at all times.
  4. Family law is an emotive and stressful situation.  It is our view that correspondence in family law cases should be factual, relevant and non-emotive with proposals, if at all possible, as to how a particular issue can be resolved. It is important to bear in mind that any letters sent on our client’s behalf during the conduct of a case may be read by a judge at a later stage. If letters are sent using inflammatory language and containing unsubstantiated allegations this may not reflect well on our client.
  5. Our aim is to put our clients in a position of control of the file/case as much as possible and to take proactive steps to progress their file.
  6. We will exercise diligence and care in reviewing all of the financial information provided on behalf of the other spouse.
  7. At all times, we will act in the best interests of our client and, in particular, the interests of the children of the relationship , in order to achieve an outcome that is as positive for our client as is possible in all the circumstances of their case.

 

If you want to find out more about our approach to family law cases please do not hesitate to contact Brendan Dillon on 2960666

 

 

 

 

 

 

 

 

 

Recent case on employer’s duty to protect employees

Recent case on employer’s duty to protect employees 

 

The Court of Appeal recently ruled a case involving the relatively unusual idea of “upwards bullying”. In McCarthy v ISS Ireland Ltd and HSE, the High Court had previously decided that the threshold required for legal bullying had not been met on the facts. In an interesting decision, the Court of Appeal found that, while the threshold for legal bullying had not been met, the employer had breached its duty of care to the complainant. The Court of Appeal ruled that what was at issue was not workplace bullying, but negligence on the part of the employer.

Writing in The Parchment magazine, Ailbhe Dennehy provides a useful overview of the facts of the case. The plaintiff reported five separate incidents of staff acting in an, “aggressive, threatening and abusive manner”, causing her, “severe stress and anxiety, humiliation, pain, and suffering”. Further, the plaintiff alleged that, “no particular action was taken to prevent a recurrence”.

In the first instance, the High Court approached this case as one of workplace bullying. Three markers of bullying were identified, namely: repetition, duration, and indications of escalation of the activity. The Court noted, “temporal gaps between each incident”, and that each of the five incidents involved a different employee.

The High Court dismissed the case, noting that, “ordinary human life is full of upsets large and small… which don’t necessarily give rise to legal liability”. The trial Judge felt that the incidents complained of would not “in the ordinary course cause a person to suffer as the plaintiff claims to have suffered”.

On appeal, the plaintiff argued that she had never presented her case as one of workplace bullying, and that the trial Judge had erred in characterising it as such. Rather, the plaintiff was presenting her case as one of negligence on two grounds:

  1. The alleged individual tortious acts by employees committed in the course of their employment which caused her injury and for which the employer was vicariously liable; and
  2. The alleged negligence by the employer by failing to provide a safe place of work by taking no reasonable or effective action to prevent recurrence of the behaviour and thereby “negligently permitting” an atmosphere to exist in the workplace whereby staff felt free to “speak and act abusively” towards the plaintiff “without fear of sanction”.

The Court stated that the concept of vicarious liability would be stretched “beyond its limits if an employer was to be found liable for every individual aggressive verbal outburst by one employee to another during the course of a day’s work, even where that outburst has caused distress”.

The plaintiff had authority over the employees in question, which could “bring her into conflict with those under her supervision”. In the Court’s view, it was reasonable for her employer to have a “particular duty of care” towards the plaintiff and to “anticipate that such conflict might occur”. This is in line with an employer’s general duty to “take all reasonable steps to protect an employee”. The Court ruled that, in the present case, “nothing was done to protect the plaintiff”.

The Court of Appeal found the employer liable in negligence for the injuries, loss and damages attributable to its negligence by:

  1. Not having policies and procedures in place to deal with issues of this nature; and
  2. Failing to provide the plaintiff with a safe place of work.

The Court of Appeal remitted the case to the High Court for a determination of the issues of causation and damages.

The idea of liability for negligence in the workplace is something that all Irish employers should now be aware of. Prompt and effective action should be taken when on notice of any employee behaviour so as to avoid any accusation that the employer is allowing such behaviour to continue in the workplace.

For any further information on employment matters please contact Niall MacCarthy on 012960666.

 

Wording for Divorce Referendum announced by Government

 

Wording for Divorce Referendum announced by Government:

 

The Government have announced that the provision that separating parties must be living separate and apart for 4 years during the previous 5 years in order to qualify for a divorce is to be removed from the constitution.

Instead the Government intend to pass legislation which will reduce the “living apart” requirement from 4 years to 2 years.

Furthermore, it is proposed that the wording in the constitution in article 41.3 which deals with the recognition of foreign divorces is also to be removed and it is to be replaced by wording which will state that provision “may be made by law for the recognition under the law of the state of a dissolution of marriage granted under the civil law of another state” i.e. the government intends to deal with the recognition of foreign divorces by way of legislation rather than it being dealt with in the constitution.

The provision in the constitution which require there to be no prospect of reconciliation and that the Court must make proper provision for the spouse and the children in relation to Divorce cases will remain in the constitution.

The divorce referendum is due to take place on the same day as the local and European elections on the 24th of May.

This proposed change by the Government is long overdue and allows couples ,who for various reasons, can no longer stay together as a married couple move on with their lives.

If you require any information or advice in relation to any family law matter please do not hesitate to contact Brendan Dillon on 01-2960666.

Factors to be considered when appointing a Trustee of your Will

 

Factors to be considered when appointing someone as a Trustee of your Will:

 

Firstly what is a trustee? – A Trustee is a person(s) who is appointed by a Testator, (the person making a will), who has the responsibility of administering the Testator’s trust, solely in the interest of the trust beneficiaries.

 

Fiduciary Duty – Each appointed Trustee has a fiduciary duty imposed by law on the trustee meaning that he/she/they have a legal obligation to act in the best interest of another party. He/she/they must avoid conflicts of interest and achieve a high standard of care in the administration of a trust. The trustee has a duty to safeguard the assets which are the subject matter of the trust and to ensure that the property is insured.

 

Conflict – The Trustee must carefully consider the nature and extent of the trust assets and any potential for conflicts of interest, meaning he/she/they, cannot place their own interest in conflict with the beneficiaries. Trust assets must be held separately from the assets that a trustee holds in his/her/their own capacity.

 

Caselaw Wild v Wild, 2013 High Court British Case

Facts – Three trustees were appointed, a wife, a daughter and a son for a Mr. Wild’s estate. Mr. Wild’s wife and daughter brought an application to have his son removed as trustee as he had refused to consent to a distribution to his mother.

Findings – Mr. Justice Arnold ordered that the son be removed as a Trustee as the son had become conflicted by his own concern that should a distribution be made from the trust to his mother, he would receive little or nothing of his parent’s wealth. Costs were awarded against the son and a distribution was made to Mrs. Wild immediately.

Conflict fundamental – Mr. Wild’s son had allowed his personal interests to influence his decisions as a trustee.

 

Standard of Care – A trustee is imposed with a duty to administer a trust with the skill and care that a reasonably prudent business person would extend to their own affairs and apply any special knowledge he/she/they may have.

 

CaselawBartlett v. Barclay’s Bank Trust Co Ltd (No.1)(1980)

Facts – Barclays Bank Trust Company was the sole Trustee of a settlement which consisted of a 99.8% shareholding in a private company. The Bank did not actively or regularly seek information on the management of the company and the beneficiaries took action against the bank for breach of trust and loss of funds.

Findings – The Court held in favour of the Beneficiaries as the bank had failed to supervise the business of the company.

Standard of Care Fundamental – The bank was a Trust Company and therefore owed a higher duty of care to the beneficiaries as it was a trust corporation which carried on the specialised business of trust management.

“Absolute discretion” – A term quite commonly used in Trust Deeds

 

Caselaw – Stacey v. Branch (1995)

Facts – The Beneficiary brought a claim against a trustee alleging breach of trust on the grounds that the trustee had failed to exercise the necessary degree of care in managing the trust property. A house which formed part of the trust had not been rented out by the trustee, thus generating a rental income for the trust, but had instead been occupied by a caretaker.

Findings – As the trust deed conferred a power on the Trustee to deal with the trust “ as he in his absolute discretion shall think fit”, although the use of the terminology “absolute discretion” did not relieve a trustee from his duty to exercise reasonable care and prudence, the Court held that the Trustee’s decision to place the caretaker in occupation of the property was one made bone fide in the exercise of his discretion. The Beneficiary’s claim was dismissed.

 

Duties of a Trustee:

  • To keep proper books of accounts
  • To properly distribute the trust property as per the trust instrument
  • To maintain equality between different types of beneficiaries
  • Not to transfer their duties under the trust to third parties

 

Factors to be considered when appointing as Trustee:

  • Consider the skills and knowledge and experience of the Trustee in advance of appointment
  • Consider the time constraints that will be involved in a trustee acting out their duties
  • Consider the nature and extents of the trust assets
  • Consider any potentials for conflict of interest
  • Consider whether a family member, friend or whoever you have in mind, is a suitable person to act as a trustee
  • Consider whether it might be more appropriate to appoint a professionally qualified and regulated trustee.

 

For further information please do not hesitate to contact Valerie Byrne on 01-2960666

Temporary break in relationship can damage cohabitation claim

 

Temporary break in relationship can damage cohabitation claim

 

In a recent case brought under the Civil Partnership and the Civil Rights of Co-habitants Act which was heard very recently by the High Court a Women failed in her bid to receive financial support from her Ex- Fiancé after the judge found that they had split up for two significant periods during the time of their relationship.

Under the Cohabitants Act, if the party can demonstrate to the court that he/she has been left in an economically vulnerable position as a result of the ending of relationship where the couple were living in a non-marital relationship for more than 5 years (2 years if they had children together) they can an seek order from the court in relation to maintenance relating to property, pensions, and inheritance. In order to qualify as a “Qualified Cohabitant” the applicant must be able to show that the couple lived together in an intimate and committed relationship for the requisite period.

The case came before Judge Donald Binchy. The applicant claimed that herself and her ex Fiancé had been together between 2007 and 2016. She claimed that even though there were certain breaks in the relationship the relationship had not ended and she offered evidence in support of this that she continued to wear her engagement ring during the breaks.

Her former fiancé claimed on the other hand that there were significant periods when the couple split up and that when they did split up this was done without an intention to become reconciled. In his ruling Mr Justice Binchy, having considered all the evidence concluded that there were two periods, one in the region of 6 months and another of 4 months where the relationship had ended. He relied on evidence provided by the fiancé (respondent) and accepted evidence which related to an account of a conversation between the applicant and her former fiancé’s sister. There were also other witnesses to support the man’s version of events.

Mr Justice Binchy referred to a previous decision of the court of appeal in which it was held that it was not necessary to prove that the couple had spent every day under the same roof to qualify for redress but he concluded that she had to prove that their relationship had been intact even during the time that they had broken up. He said that she had not been in a position to offer any witnesses to support her version of events and he concluded that she had failed to meet the tests set out in the legislation i.e. that there had to be a continuous period of intimate and committed relationship for five years and accordingly the claim fell.

In summary, if there are any significant breaks in a non-marital relationship this may be fatal to claim for redress under the scheme.

For further information on any family law matter please do not hesitate to contact Brendan Dillon on 01-2960666