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

Rights of People suffering from Dementia

 

Rights of People suffering from Dementia

 

With the increasing rates of Dementia being diagnosed, it is important for people to be aware of issues that can arise and that should be considered:

 

  1. Dementia is a form of disability and as such people with dementia are protected by the 1998-2015 Employment Equality Acts.
  2. A person cannot be dismissed from their work just on the basis of a diagnosis of dementia. Their Employer is obliged to try and take appropriate measures to accommodate the person at work provided that it does not create a disproportionate burden on the employer. This could include offering flexible working hours or assigning the person different work.
  3. The Equal Status Act also bans discrimination or harassment and promotes the reasonable accommodation of people with disabilities.
  4. Where someone is diagnosed with Dementia any life policies /Assurance policies or mortgage protection policies should be reviewed as some may pay out early on a diagnosis of dementia. Other policies which have illness cover or critical illness cover may also pay out on the basis of a diagnosis.   For people who are still in employment there may be some form of income protection cover available depending on the terms of their policy.
  5. A diagnosis of dementia does not automatically exclude a person from driving but they should inform their insurance company of their diagnosis to exclude any risk of having no cover in the event of an accident. Alternatively, it may be prudent to have a formal driving assessment by a suitably qualified driver before making a decision on the individual’s fitness to drive.

 

If you require any further information please so not hesitate to contact Pauline Horrkan on 01-2960666 or email info@dillon.ie

 

 

 

 

Statement of Terms of Employment – New Requirement

 

Statement of Terms of Employment – New Requirement

The Employment (Miscellaneous Provisions) Act 2018 came into force on 4th March 2019. The main change is to the Terms of Employment (Information) Act 1994 and in this regard, an employer must now provide a statement of the core terms of employment within 5 days of commencement of employment and these core terms are:

  1. Full name of Employer and Employee
  2. Address of Employer
  3. Expected duration of employment, in the case of a temporary contract of the end date if a fixed term contract
  4. Rate or method of calculation of employee’s pay
  5. Number of hours the employer reasonably expects the employee to work per normal working day and per normal working week

The other terms must be provided within 2 months as per existing legislation. If the above is not complied with an employee may submit a complaint to the WRC and may be awarded up to 4 weeks remuneration.

 

If you have any queries in relation to employment law, please do not hesitate to contact Brendan Dillon or Niall MacCarthy of this office on (01) 2960666 or info@dillon.ie

Medical Negligence Claims – The Practical Steps

 

 

 

Medical Negligence Claims – The Practical Steps

In order to pursue a claim for medical negligence in Ireland, you must have expert reports from suitably qualified doctors/consultants.

The first step is to obtain your medical records which involves signing letters of authority addressed to each treating doctor / hospital. A detailed statement is also taken from you regarding what happened. The medical records are shared with the Defendant with the consent of the patient.

Reports:

There are 3 categories of expert report required as follows:

  1. Breach of Duty – this is a report from a doctor of like qualification who will be asked to provide an opinion on negligence or breach of duty i.e. that the standard of care provided fell short of what would be expected of a reasonable doctor of like speciality;
  2. Causation – this is a report from a specialist in the relevant area of medicine to give an opinion on the link between the breach of duty and the injuries or ultimate outcome. There may have been a breach of duty, but if this did not adversely affect you, then there may not be a stateable case. Such an example would be a delay in diagnosis where the delay had no material impact on the patients ultimate outcome;
  3. Condition / Prognosis (quantum reports) – these are reports commissioned to quantify the claim and can vary from case to case depending on the circumstances.

All 3 of the above categories must produce supportive reports in order to pursue a stateable case to court. These reports can be expensive and are payable up front by the patient. The experts may be based in Ireland or the UK. The costs for the reports are generally recoverable if the case settles or if you succeed in your claim in court.

The Defendant will also be obliged to obtain their own expert reports if they wish to formally defend the claim. If they cannot obtain supportive reports for Breach of Duty and Causation, they may concede either or both points and the only issue may be quantum i.e. the value of the case, to include general damages for pain and suffering and special damages (out of pocket expenses to include loss of earnings, medical bills etc).

 

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

New Domestic Violence Act extends eligibility to apply for orders

The Domestic Violence Act, 2018 commenced on the 1st of January 2019 and has made significant changes in extending the eligibility to apply for Safety, Protection and Barring orders notably:

Section 6(1)(a)(iii) of the Act removes the previous requirement of cohabitation between the parties to apply for a Safety/Protection Order and now requires that the parties have been in an intimate relationship at the time of the application without any requirement of living together.

Section 7(1)(c) of the Act requires that the parties have been living together in an intimate relationship to make an application for a Barring Order.

Prior to the 2018 Act, parties must have been living together six out of the previous nine months in an intimate relationship to apply for a Barring Order. This minimum period of cohabitation has been removed.

The 2018 Act has introduced an Emergency Barring Order, this new order provides a time-limited protection where there is an immediate risk of significant harm. Crucially, cohabitants who do not satisfy the property test for a Barring Order are eligible to apply for this order provided they have lived in an intimate and committed relationship with the respondent prior to their application (Section 9(1)(a)).

 

If you have any query of a family Law nature please contact Brendan Dillon on 01 2960666.

Minister seeks to take Divorce out of the Constitution

Minister seeks to take Divorce out of the Constitution

 

The Minister for Arts Josepha Madigan who is an experienced Family Law Solicitor had previously sought all parties support for a change to the Constitutional requirement that parties must be living separate and apart for four years before they can apply for a Divorce. The proposal was to reduce this waiting period for Divorce from four years to two.

 

The Minister is now seeking all party support to repeal Article 41.3.2 in its entirety on that basis that Divorce would be dealt with by way of legislation only.

 

Only time will tell whether this significant change to the manner in which Divorce is dealt with in this country will be received. Even if it does not receive all party’s support it is hoped that the time frame for allowing parties to apply for a Divorce will go ahead next May as proposed and reduce the time frame from 4 years to 2 years.

 

If you require any information or advice in any Family Law Matter please do not hesitate to contact Brendan Dillon at 01-2960666 or BrendanDillon@Dillon.ie

Changes in Personal Injury Awards

 

Changes in Personal Injury Awards

 

The Government set up a Personal Injuries Commission some time ago and it second a final report issued in September. This will establish a Judicial Council which will establish guidelines for Judges as to the nature of personal injury awards to be made.    This is to address the uncertainty which exists at present in relation to the award of damages for personal injury claims.

 

If you require advice in relation to any of the topics or indeed any other legal topics, please do not hesitate to contact on 01 2960666 or info@dillon.ie.

 

Article on GDPR

GDPR

Writing in this month’s Parchment magazine, Sarah Reynolds urges continued vigilance among senior management and employees with respect to their GDPR obligations. Ongoing monitoring of GDPR processes and procedures will be critical to the ability of organisations to comply with their GDPR obligations. Sarah Reynolds urges these organisations to view 25th of May 2018 as the beginning, rather than the end of their GDPR obligations.

A note of caution is sounded in the article in relation to human error, singled out as the main cause of data breaches, and the most difficult to prevent. These errors can circumvent the very best of GDPR processes and procedures, and require organisations to maintain an awareness of their obligations at all times.

The DPC can impose fines for GDPR breaches on a higher or lower tier. Higher tier fines can total €20m or 4% of the total worldwide annual turnover of the controller or processor in the preceding financial year. These higher tier fines can be imposed for infringements of obligations relating to the core data protection principles such as transparency and accountability, the processing of sensitive personal data and breaches of data subjects’ rights.

Lower tier fines can total €10m or 2% of the total worldwide annual turnover of the controller or processor in the preceding financial year. These lower tier fines may be imposed for infringements of obligations relating to obtaining a child’s consent, to the communication of a personal data breach to the supervisory authority or the data subject or to the designation, position and tasks of the data protection officers.

Under article 83 of the GDPR the DPC must consider the nature and type of infringement, the intention, any mitigating factors, preventative measures, and the different categories of personal data before imposing a fine. The quantum of any fines must be approved by the Court, and the affected organisations have the entitlement to appeal the fines imposed by the DPC.

From the 25th of May 2018 to the 16th of November 2018, the DPC has logged 3,111 data breach notifications. Of these notifications, the GDPR applied in 2,734 cases. The DPC has also logged 2,168 complaints, with the GDPR applying in 1,321 cases. Sarah Reynolds points out that these figures have increased from last year, indicating a climate of increased awareness of GDPR obligations.

The DPC has yet to exercise its powers, and we do not yet know the parameters for fines relating to breaches of GDPR. Of some guidance, however, is the recent fine of €400,000 doled out to a Portuguese hospital by the Portuguese Data Protection Authority for two separate breaches of GDPR.

A civil claim for damages will also be open to impacted data subjects under section 128 of the Data Protection Act 2018, without lodging a complaint with the DPC. However, Sarah Reynolds suggests that it is more likely that a parallel claim will be lodged with the DPC in

Article on Employee Claims – Responsibility on employers

 

Employee Claims – Responsibility on employers

 

A recent decision of the Court of Appeal in the case of McCarthy-v- ISS Ireland Limited and HSE succeeded on the basis that various acts committed by follow employees caused the Plaintiff injury for which the Employer was vicariously liable (i.e it was as if the acts had been committed by the Employer) and the Employer had failed to put in place a safe place of work to avoid the reoccurrence of this behaviour.

 

The Court held that the Employer had thereby “negligently permitted” an atmosphere to exist in the work place whereby cleaning staff felt free to “speak out and act aggressively and abusively” towards Ms. McCarthy “without fear of sanction”.

 

The Court found that it was too far a stretch to make the Employer liable for the individual acts of various employees and as such did not impose vicarious liability on the employer.

 

However, it found that in relation to the claim by the Employee that the Employer had not provided a safe place of work, it stated that the Employer “must take all reasonable steps to protect the Employee” where there is a foreseeable risk so that no injury is caused. In this case, the Court found that nothing was done to protect the Plaintiff who was in a supervisory role in circumstances where it was acknowledged that a supervisory role could lead the Plaintiff into conflict with her follow employees.

 

The outcome of this case is that Employers must be conscious and aware that just because an Employee cannot prove that behaviour amounts to workplace bullying may not absolve an Employer from liability.   Employees have a duty to ensure that a safe place of work exists for all employees.

 

If you require advice in relation to any of the topics or indeed any other legal topics, please do not hesitate to contact on 01 2960666 or info@dillon.ie.

 

Article on Negotiating a commercial Lease

 

 

Negotiating a commercial Lease

 

The following are some of the matters that tenants should consider when taking on a commercial Lease:-

 

  • Check that the Planning Permission allows the use to which you, as a tenant, wanted to put the property.
  • Try and negotiate a rent free fitting out period.
  • Try and negotiate a break clause particularly if the lease is longer than 5 years.
  • If the property is an old property and there may be repairs to be carried out, make sure that these are carried out by the Landlord before you take occupation.   It would be advisable to get an Architect to carry out what is called a schedule of dilapidations.
  • If the lease is being taken by a Company, try and avoid giving personal guarantees.   This may be difficult depending on the respective bargaining the powers of the landlord and the tenant.
  • If you require advice in relation to any of the topics or indeed any other legal topics, please do not hesitate to contact on 01 2960666 or info@dillon.ie.