Court of Appeal: guidance on meaning of “Severe and Permanent”

 

 

Court of Appeal gives guidance on meaning of  “Severe and Permanent”

 

In a recent decision of Ledig -v- O’Neill the Plaintiff was injured in an accident while on a motor bike in August 2015. His injuries which were primarily to the Scaphoid bone in the wrist involved surgery which left a 5cm scar. By the time the matter had came to Court he had ongoing issues in relation to his condition.

 

The High Court awarded general damages of €155,000 which included damages for past pain and suffering, future pain and suffering and also included damages for loss of hobbies.

 

The award was appealed to the Court of Appeal. The Court of Appeal accepted that the High Court had, in considering the award of damages  , referred to the Book of Quantum but held that it had not done so correctly. The High Court had assessed damages of €155,000 on the basis that the injuries came within the most severe category of damages namely “severe and permanent”. The Court of Appeal disagreed and said it is only the most severe of injuries that come within this high threshold.

 

It also held that damages assessed by the High Court for past and future general damages exceeded the maximum allowed by the Book of Quantum. They also determined that there was no separate heading for loss of hobbies, and this was to be taken into account in the general heading of damages. As a result, it reduced the damages significantly to €65,000.

 

This decision is a stark reminder of the trend within the appellate Courts to reduce awards of damages and to assess them on a more conservative nature.

 

For any information in relation to personal injuries do not hesitate to contact Donna Phelan or Conor White on 01-2960666

Delay could be the death of you!

 

Delay could be the death of you!

 

In an interesting recent case where the deceased died intestate (without a Will) in 1987. The Plaintiff did not issue Proceedings until some 29 years later.

 

The Plaintiff issued Proceedings alleging misrepresentation by his siblings ,in relation to the administration of the Estate generally and also personal injuries for psychological damage.

 

The High Court applied the 6 year time limit for misrepresentation and in relation to the administration of the Estate and a two year time frame for the personal injury action and determined that time ran began to run from 2003/2004 and were long since Statute Barred.

 

It is a salutary lesson that if you believe you have a claim in relation to the Estate of a deceased person take legal advice at an early stage and do not delay.

 

If you have any further queries in relation to any Probate related matter, do not hesitate to contact Pauline Horkan, Lorna McArdle or Conor White on 01-2960666

New Probate Process

 

New Probate Process

 

The Revenue Commissioners have recently introduced a new format for what was previously known as the Inland Revenue Affidavit (CA24). The Inland Revenue Affidavit has been replaced by what is known as an SA2 form which now must be filed with the Revenue Commissioners online and a receipt obtained which is then lodged with the other Probate papers in the Probate Office. A lot of the information that was previously required for the CA24 is still required in the SA2 but it is important to be aware that the following additional information is required in order to complete the form:

 

  1. Dates of Birth for each beneficiary
  2. IBAN numbers for any bank accounts held
  3. Details of any section 72/73 policy

 

The statement of affairs form is completed as the first step in applying to the Probate Office for the Grant of Representation. The Procedure with the new application process involves either the personal representative of the deceased or other authorised person on their behalf such as a Solicitor to sign into the Revenue online system and complete the form online.

 

When the statement is completed a notice of acknowledgment will issue to the inbox of the account holder which will contain information that the Probate office use to issue the Grant of Probate/Administration.

 

It is important to note that the Probate office will only accept applications that include this notice from Revenue going forward and will no longer accept the CA24.

 

If you require any information regarding the Probate process please do not hesitate to contact us on 01-2960666.

Temp Suspension on Residential Evictions during Level 5 Restrictions

 

Temporary Suspension on Residential Evictions during Level 5 Covid-19 Restrictions

 

The Residential Tenancies Act 2020 (RTA 2020) temporarily prevents the eviction of residential tenants from taking place during level 5 restrictions. The Act was signed into law on the 24th of October to reduce the impact of the pandemic and restrictions on residential tenants.

The RTA 2020 amends the Residential Tenancies Act 2004-2020, to prevent residential notices of termination from taking effect during:

  • the 6-week period of Level 5 restrictions which commenced at midnight 21 October 2020: and
  • any other period during which a 5-kilometre restriction on movement is in place (i.e. future level 5 restrictions),

plus, a further 10 day “grace period” period following the lifting of restrictions to give tenants time to find alternative accommodation.

Therefore, where a residential notice of termination has been served before or during Level 5 restrictions, the date which tenants must vacate the premises (termination date) will be suspended by law for the duration of Level 5 restrictions and an additional 10 days following the lifting of Level 5 restrictions.

The revised termination date may be calculated as follows:

The amount of time left to run on the termination notice + the period of Level 5 restrictions + 10 days = revised termination date. 

Exceptions:

There are a number of exceptional circumstances in which a residential landlord may serve a valid notice of termination on tenants during Level 5 restrictions. These are in circumstances of:

  1. anti-social behaviour;
  2. a tenant acting in a way that would invalidate a house insurance policy;
  3. a tenant acting in a way that would cause substantial damage to the accommodation; and/or
  4. a tenant using the accommodation for commercial or other non-residential purposes.

If any of the above four reasons apply, the date of termination will not be suspended and the eviction can proceed in the normal way, at the end of the termination notice period.

If you have any queries in relation to this article or any other property related matter, please do not hesitate to contact any of our Solicitors on 01 296 0666.

 

 

Covid 19 and your Business

 

 

Covid 19 and your Business

Support for Businesses

The aim of the Employment Wage Subsidy Scheme (EWSS) was to encourage firms to retain staff, and it has been revised to align it more closely to the Pandemic Unemployment Payment (PUP) rates.

The EWSS is also available to employers who have had to temporarily close their business due to level five public health restrictions. This applies for eligible workers that are kept on the payroll while the businesses are closed.

Businesses who previously did not qualify for EWSS may now be able to show the necessary 30% reduction in turnover or customer orders between 1 July and 31 December 2020.

 

Benefits in Kind

Due to the public health restrictions, many businesses have had to shut their doors and staff have been required to work from home.

As a result, employees have had to set up temporary home offices and employers have assisted with same by providing laptops, office furniture, printers etc.

Revenue have advised that no benefit in kind charge will arise in relation to same during the Covid 19 pandemic.

 

Tax Returns

It is important that tax returns are filed even if payment of the liabilities is not possible.

If there is difficulty in having Tax Returns completed due to the relevant staff being unavailable, the advice is that the Tax Return be submitted on a best estimate basis and amendments can be made thereafter on a ‘self-correction’ basis.

 

Revenue Audits

Tax audits and compliance inspections on business premises have been suspended.

Revenue have advised that ongoing investigations will be completed by phone or online.

 

CAT & CGT

While on the topic of tax it may be worth mentioning CGT and CAT.

There have been no changes to CAT & CGT in light of Covid 19. However, as valuations may be lower due to the pandemic, it may be a good time to gift property if it was something you had wanted to do.

With regard to CAT, if the property is sold at a later date it could give rise to CGT if the selling price was considerably higher than the initial valuation and this is something that needs to be considered when properties are being sold.

 

If you have any queries or require any advice on any of the matters referred to in this article do not hesitate to contact Lorna McArdle on 01 2960666

An attractive option for parties who do not wish to attend court twice

Separation Agreement: an attractive option for parties who do not wish to attend court twice

The Family Law Act 2019 reduced the time limit for divorce applications in Ireland. Parties must now only be living separate and apart for two years prior to divorce proceedings being issued as opposed to four years.

This reduction in timeframe for divorce may decrease the number of parties seeking a judicial separation as they will simply wait until they reach the 2-year timeframe for a divorce rather than incurring the expense of two sets of court proceedings.

In this regard, a Separation Agreement may be a more attractive option for parties who do not wish to attend court twice but seek clarity in the interim period before they are entitled to divorce.

A Separation Agreement is a binding contract upon each spouse and once entered, parties are precluded from bringing judicial separation proceedings.

A Separation Agreement may include provisions relating to:

  • Custody and Access
  • Maintenance
  • Income Tax
  • Property
  • Responsibility for Debts
  • Succession Rights
  • And other miscellaneous provisions

It is important to note that spouses cannot agree pension adjustment orders between themselves, thus retirement or contingent benefit orders cannot be included in a Separation Agreement. However, spouses may indicate in the Separation Agreement their intention to make certain pension adjustment orders within their divorce application but they will not be binding on trustees and may be reconsidered by the Court when revisited at divorce stage.

Further, a Separation Agreement is not binding on a Court in any subsequent divorce proceedings as the Court must be satisfied that proper provision has been made for each spouse.

The current Covid-19 crisis has resulted in limited court sittings, lengthy adjournments and economic concerns making a Separation Agreement an even more attractive option for parties who seek certainty in these unprecedented times.

If you have any queries in relation to this article or any other family law matter, please do not hesitate to contact Brendan Dillon on 01 296 0666.

Retailers’ duty of care: a slippery slope

 

Retailers’ duty of care: a slippery slope

Slip and fall accidents are a regular feature in the Courts’ legal diary.  A slip and fall claim can occur when a customer slips and falls on something, usually a liquid or deleterious item (for example a pint of milk or broken tin of beans), in or on the premises of another causing them personal injuries.  These types of claim can commonly take place in premises such as cafes, restaurants, shops or supermarkets.

 

This was the case in the recent trial of Desmond -v- Dunnes Stores which came before the High Court.  The Court heard that the Plaintiff was caused to fall and seriously injure herself after a slip and fall on a spillage on the floor of an aisle of one of the Defendant’s supermarkets.  The High Court awarded the Plaintiff €102,000 in damages.

 

The Defendants appealed the Order to the Court of Appeal on the basis that their system put in place to deal with spillages and contaminants was sufficient to fulfil their duty of care to patrons at their premises.  The Defendants contended that they had fulltime employees whose sole purpose was to attend to spillages and contaminants and that those employees would traverse each aisle at least once every 15 minutes or so.

 

They argued that CCTV footage of the incident showed a high volume of customers traversing the area where the Plaintiff slipped without difficulty and thus contended that the spillage must have taken place immediately prior to the Plaintiff’s fall.

 

Their CCTV footage also showed that an employee on the day had checked that very aisle mere minutes prior to the incident.  The Defendants felt that they could have done no more to protect the Plaintiff in all the circumstances and that they should not be held liable for the injuries sustained.

 

Interestingly, both Plaintiff and Defendant liability experts agreed and acknowledged that the frequency of inspections every 15 minutes by the employee were adequate.  However, the Plaintiff’s liability expert felt that it was clear from the CCTV footage that the employee was not overtly vigilant.  He pointed out that the Employee appeared to be looking straight ahead when walking the aisle, rather than inspecting the floor or entire aisle spaces.  The Employee in question gave evidence admitting that the task was boring and she could find her mind wandering during the day.

 

Although training had been provided for all employees, the Plaintiff’s liability expert also felt that the adequacy of that training fell short of what should be required, as there was no emphasis on how vigilant Employees should be to spillages and alive to potential hazards in the aisles.

 

 

The CCTV footage provided by the Defendants was essentially a series of stills thus they were unable to prove exactly when the spillage occurred.  They contended that the spillage occurred immediately prior to the Plaintiff’s accident, just following the employee’s check of the aisle.

 

 

The Trial Judge decided however that the Defendants had not discharged the burden in proving when the spillage precisely occurred and in fact, the Trial Judge felt that the spillage had occurred much earlier and it was simply the case that the spillage was missed by the Dunnes Stores employee.   The Trial Judge’s decision was upheld by the Court of Appeal.

 

So what does this mean for Retailers going forward and discharging their duty of care to customers? 

 

  1. It would appear that 15 minutes intervals between checks is adequate.

 

  1. The quality of the checks should be reflected in training protocols and there should be emphasis on the vigilance to be applied to such checks

 

  1. Employee should execute their duty with quality, precision and vigilance.

 

  1. The quality of the CCTV provided to the Court may have let the Retailer down in this instance. Had the CCTV been of better quality, it may have been possible to pinpoint the exact moment when the spillage occurred and thus the Defendants may have been successful in their argument that they had done everything possible within their power to discharge their duty of care to their customers.

 

If you require advice on any personal injury matter or any other issues involving a dispute please contact Donna Phelan on 01 2960666

Unlawful deduction of wages

 

Unlawful deduction of wages

 

A very recent decision of the High Court in Marek Balans -v- Tesco Ireland Limited considered circumstances in which an employee was not paid in accordance with the terms of his Contract.

 

This case involved an interpretation of Section 5(6) of the Payment of Wages Act 1991. The Act prohibits unlawful deductions from an employee’s wages. Section 5(6) states that if the total amount of wages paid is less than the total amount that is properly payable then the deficiency should be treated as an unlawful deduction unless the employer can show that the deduction was due to an error of computation.

 

This was a case that was initially dealt with by the WRC and was appealed to the Labour Court and subsequently appealed to the High Court.

 

The Employee had entered into a number of Contracts with his employer in 2012, 2013 and in 2015. The 2015 Contract provided for an increase of his basic pay from €9.69 to €11.87 but the employer contended that this was an error in that the basic rate was calculate in a manner which incorrectly incorporated an agreed 20% premium for unsocial hours which the Employee had received under his 2013 Contract. The employer paid the wages in accordance with the 2015 Contract between June 2015 and October 2016 but thereafter paid the employee a reduced figure of €10.29. The employee contended that this was an unlawful deduction with which the WRC agreed. This was overturned by the Labour Court and that there was no unlawful deduction as the rate of pay specified in the plaintiff’s contract of employment arose as a result of a computational error and was not therefore properly payable.

 

The matter came before Mr. Justice McGrath in the High Court and he determined that the crucial issue was the interpretation of wages that were “properly payable” and in this regard he had to assess whether the deficiency in payment arose as a result of an error of computation. He disagreed with the Labour Court in that he held that the labour Court had unwittingly conflated as to whether wages were properly payable under the 1991 Act with the question as whether there had been a deduction or whether there had been a deduction and whether the deduction came with being the exception governed by Section 5(6).

 

He allowed the Plaintiff’s appeal and sent it back to the labour Court for further consideration. Holding the Plaintiff’s claim he was simply accepting that the Labour Court may still have found that the appellant’s case was without merit. The Labour Court had to determine it on the correct basis. The question which the Labour Court had to determine was whether the wages were properly payable and not to confuse that issue as to whether there had been a deduction or whether the deduction came within the definition of Section 5(6).

 

In summary, the Court was essentially saying that if an employer is paying somebody less than is set out in the Contract of employment this will not be considered as a computational error for the purpose of the exception set out in Section 5(6) of the 1991 Act. The burden of proof will lie with the employer to prove that the amount that the employer has been paying was properly payable.

 

For many it highlights the importance of employers making it very clear as  to what was intended by the employment Contract.

 

For further information on any employment issue, please contact Brendan Dillon or Donna Phelan on 01-2960666 or info@dillon.ie

The right to light is not an automatic right in Ireland

 

 

The right to light is not an automatic right in Ireland

 

A right to light can be defined as a private, legally enforceable easement or right to a minimum level of natural daylight illuminated through a “defined aperture” (usually a window) whether conferred express or by implied grant or obtained at common law by a process of long uninterrupted enjoyment known as prescription.

 

The introduction of the Land and Conveyancing Reform Act 2009 has abolished all easements to light or rights to light unless they are registered before 2021 or the right is given by way of an express grant.

 

The nature of most of the rights to light in Ireland is that they must be expressly granted as the law has held that no person or building has an automatic right to light.

 

In the event that a built structure significantly affects the quality of the light received, the affected party will have no right to sue to prevent this, unless there is already an express grant of a right to light in a legal form in place.

 

The 2009 Act abolishes the creation of easements to light in Ireland that were not registered before 2021. After that date, it is important to note that any right to light must be expressly granted by deed or else no such right will exist.

 

For any further information in relation to matters regarding the right to light, please do not hesitate to contact Brendan Dillon on 01-2960666.

 

Welcome to Donna Phelan – New Solicitor to the firm

We are delighted to announce that we have appointed Donna Phelan as solicitor in Dillon Solicitors. Donna joined the firm in September 2020. Donna comes with a wealth of experience, having been a Legal Executive for 11 years prior to qualifying as a Solicitor in 2018. She deals primarily in the area of Litigation and has been involved in many contentious personal injuries cases. She also has extensive experience and skill in advising clients on Probate, Family Law and Property. Donna enjoys walking her dogs and running in her free time and is an avid Rugby fan.

Welcoming Donna to the team, Brendan Dillon, Managing Partner of Dillon Solicitors said: “As we continue to see growth in our practice, it is a pleasure to welcome Donna to the Dillon Solicitors team. Donna brings with her specialist knowledge in the area of litigation and Personal Injuries cases, which will be of considerable benefit to both our team and clients”.