Tuesday 26 March 2019

Child (4) injured while in womb when mother collided with shopping trolley awarded €45,000

(stock photo)
(stock photo)

Ray Managh

A four-year-old child, injured when only at 20 weeks gestation in her mother’s womb, has been awarded €45,000 damages for personal injury resulting from an accident in a Tesco store.

Barrister David K. McGrath, counsel for Siwan Stewart who is now just three months short of her fifth birthday, told Judge Eoin Garavan in the Circuit Civil Court that the unborn baby girl was injured when her mother collided with her shopping trolley that stopped suddenly on a Tesco travellator.

Mr McGrath, who appeared with Sean Miller of Crowley Miller Solicitors, said Siwan’s mother, Elaine Stewart, banged against her own shopping trolley when it stopped without warning on the travellator in Tesco’s at the Bloomfield Shopping Centre, Lower George’s Street, Dun Laoghaire, Co Dublin, in February 2013.

Judge Garavan said the injury of an unborn child in a shopping accident was a most unusual case and one which he had not been aware of having previously come before the court.

Mr McGrath said that when Siwan was born in May 2013 she was found to have been suffering with haemolytic disease of the newborn, a type of jaundice and had to be treated in a special unit for just under a week.

He said a medical expert had related Siwan’s condition to the travellator accident in Tesco’s and following the initiation of a claim on her daughter’s behalf by Ms Elaine Stewart, of Claremont Road, Sandymount, Dublin, the Tesco store had proffered a settlement of €45,000 to Siwan.

Counsel told the court that Ms Stewart’s daughter Adelaide, who was three at the time and had fallen and injured her head on the travellator, had been offered a settlement by Tescos of €28,000 and he was recommending acceptance of both offers to the court.

Mr McGrath said that the girls’ mother had not made any claim against Tescos on her own behalf but only on behalf of her children.  Judge Garavan said the offers in both cases were very good and he approved both settlements.

While such a case is practically unknown to the Irish courts, in April 2018 a 23-months-old boy, who had not been conceived when his little sister was killed in a hit-and-run in Dublin’s Phoenix Park in 2015, was awarded “grief money” in the Circuit Civil Court for her death.

Marcel Siatka was born in May 2016, a year and 47 days after his sister Vanessa died in what a trial judge described as the worst case of dangerous driving he had ever heard of.  Vanessa’s dad, Lukasz Siatka, told Judge Terence O’Sullivan in 2018 that the Injuries Board had assessed damages of €42,777 to be divided between Vanessa’s surviving family, including the cost of her funeral.

Mr Siatka had taken a claim on behalf of members of his family, including Marcel.  Judge O’Sullivan said it was not a particularly nice exercise to have to divide money between members of the family but felt it would be appropriate to mark the fact that Marcel would undoubtedly make inquiries in the future about his sister and would experience grief for her loss. He awarded Marcel €1,500.

Victims of hit-and-run cases are eligible for compensation through a special fund set up under the Motor Vehicles Act of 1988 called the “Solatium Fund” more commonly known as tear money.

In August 2014 Scottish Judge Lord Woolman granted a bereavement or “loss of society” award of £14.000 to a grandchild of a man killed in a road traffic accident. The grandchild had not been born at the date of death of his grandfather.

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