Monday 18 December 2017

Suing over an injury can cost more than case is worth

Vanessa Behan, of The Richmond, North Brunswick Street, Dublin, pictured leaving court.
Vanessa Behan, of The Richmond, North Brunswick Street, Dublin, pictured leaving court.
Allison Bray

Allison Bray

PEOPLE seeking compensation through the courts for personal injury claims could be gambling away their homes and life savings as well as their future earnings if they lose, according to a leading solicitor.

In the latest case heard earlier this month, a Dublin mother who sued the Blanchardstown outlet of the Eddie Rocket's burger chain for damages after her two-year-old daughter's finger got stuck in the lid of a sugar dispenser, was ordered to pay costs at both the Circuit Court and the High Court when she appealed the lower court decision dismissing the case.

In what High Court President Mr Justice Nicholas Kearns, called "another case of compensation culture gone mad", he awarded costs against the toddler's mother Vanessa Behan, of North Brunswick Street, Dublin, whose daughter Robyn sued the chain through her mother.

The little girl suffered a laceration or cut to the bottom of her finger when she put it in an 8mm opening in the metal lid of a sugar dispenser on the restaurant table when she was out for a family meal in September, 2011, and couldn't get her finger out.

Staff were unable to remove the lid using soap and lubricants, the finger began to bleed, and the lid had to be cut off at hospital. The child was left with a small scar on her finger, the court was told.

The mother claimed that the dispenser didn't comply with EU safety regulations and that the restaurant should have warned patrons of the risk involved; a claim the judge found "extraordinary".

Dublin solicitor Stuart Gilhooly, who has specialised in personal injury cases for the past 20 years, said Ms Behan could be facing a legal bill of around €20,000 even though he estimates the maximum compensation she may have received if she was successful was between €5,000 and €10,000.

"It wasn't a hopeless case. It wasn't unwinnable but it was a difficult case," he said.

In another recent case, a woman who sued the popular Dublin nightclub Copper Face Jacks last summer for injuries after a male work colleague fell on top of her while they were "dirty dancing" was also ordered to pay court costs when her case was dismissed.

Ciara O'Connell, 33, a sales representative of Glenview Park, Tallaght, in Dublin, claimed the nightclub was negligent when her colleague fell on top of her due to a slippery floor, injuring her arm that left her unable to work for three months.

But High Court judge Mr Justice Sean Ryan called the incident "just the combination of circumstances" and rejected O'Connell's claim for damages.

He also ordered her to pay court costs for the two-day hearing last June, which Stuart Gilhooly estimates could cost her up to €40,000 in legal bills which is at the upper end of what she may have received in damages had she won the case in the first place, he said.

While he admitted that it is often difficult for a solicitor to predict whether a personal injury claim will be successful, personal injury solicitors in Ireland generally won't take on a case unless they are reasonably sure they will win it.

"A solicitor is almost never paid up front. Almost all operate on a 'no-win, no-fee' basis," he said.

For that reason, most personal injury cases that wind up in the courts do succeed, he added. But if they don't, claimants could end up paying for it for the rest of their lives.

Aside from legal fees alone, court costs also include any professional fees and travel costs for witnesses as well as fees for medical reports and loss of earnings on top of VAT.

If a judge orders legal fees or court costs against a claimant who does not have the funds to pay it, the successful defendant can apply for a judgement mortgage against any property owned by the claimant and force the sale of that property to recoup the money. The successful defendant can also get a garnishee order attached to a claimant's wages until the fees or costs are paid.

In extremely rare circumstances where fraud or deception is involved, a claimant could be prosecuted for criminal offences under the Civil Liability and Courts Act 2004, which happened last week here.

Raymond Smith, 29, of Cairn Court, Poppintree, Ballymun, narrowly escaped a jail term after he pleaded guilty to providing false or misleading information to his solicitor claiming he had injured his back in a car accident despite recordings of him taking part in a cage-fighting competition following the crash.

He faced a maximum prison term of 10 years and a fine of up to €100,000 but he was given a three-year suspended sentence instead by Judge Mary Ellen Ring who said an example had to be made of people "willing to make false claims for financial reward".

Fortunately in Ireland -- as opposed to the UK or US where solicitors can advertise for personal injury claims -- there is no "ambulance-chasing" culture here epitomised by sleazy lawyer Saul Goodman in the hit US drama Breaking Bad," he said.

"I don't agree at all with compensation culture," he said. "There are plenty of times when things are just accidents."

Irish Independent

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