MEDICAL NEGLIGENCE
Time Limits
Time limits for starting an injury claim are set out in the Statute of Limitations legislation for all claims, including medical negligence claims. For the latter, there is a general rule that cases must be commenced within two years from the date of the alleged negligent act.
There are though exceptions to the general rule. This can arise where the injury caused only presents itself later, outside the two-year limit, and for this situation, the critical element is the ‘date of knowledge.’ So, in this case, the two-year period would run from the date the injured party became aware that they had suffered an injury and that the injury was caused by the negligence of a third party. To qualify for the exemption, the party must plead that they were unaware of the alleged negligence in the two-year period from the wrongful act.
What is ‘Date of Knowledge’?
In cases where on the date the accident occurred, the injuries are immediately obvious or noticeable, then the two-year rule will apply. But that is not always the case, particularly in illnesses which can take longer to become noticeable. In the latter cases, the important date as far as initiation of litigation is concerned, is the date the injury was discovered.
The protocols to extend the two-year rule also applies to children and people with intellectual issues. Different rules apply to children than adults. Here a person is considered a ‘child’ until their 18th birthday. Note the two-year rule runs from the date of their 18th birthday, but they may also take their case earlier by suing through their mother, father, or guardian.
Issuing Proceedings
Once legal proceedings have been issued and correctly served on the parties, the clock stops on the limitation period. If a person is considering making a claim, they should consult their solicitor early as there is much work to be done prior to the issuing of legal proceedings.
In pursuing a medical negligence claim, your solicitor will request the medical records, which can take time. Then on receipt of them, your solicitor will need to obtain an independent medical opinion on the injury/illness and this person will be your expert witness.
There may be other witnesses to be considered by the legal team so all these matters must be reviewed by your legal team before legal proceedings can be issued. The two-year time limit will go quickly, so consult your solicitor as early as possible.
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Unfortunately, as often seen in the media, pedestrians can be the victims of road traffic accidents in Ireland. In some instances, the cause of the accident is the pedestrian. In such cases, a court will have to balance and determine on the ‘duty of care’ of the driver and the pedestrian. If the court finds that the pedestrian caused the accident, then the liability falls on the pedestrian. This could have dire financial consequences because while the drivers will be insured, the pedestrians, will not. Circumstances where Pedestrians are at Fault. Drunkenness/drugs: a person under the influence of alcohol or drugs wandering onto a road causing an accident. Negligence: Pedestrians who are distracted (e.g., using a mobile phone). Jaywalking: Busy roads have designated places to cross over, these can be traffic lights, zebra crossings or islands in middle of the road. These are there to aid pedestrians crossing the road. If a person chooses to cross a road outside of these and they are there, then they could be held liable for an accident. A court will carefully examine the evidence and might conclude that both the driver and the pedestrian were at fault and will apportion the liability. Compensation for Injury Your solicitor will advise you on what court the case can be taken in. • District Court - €2,000 in small claims or claims up to €15,000. • Circuit Court - Claims between €15,000 and €75,000 (€60,000 in personal injury claims) • High Court - Claims above €75,000 with no upper limit It is important that you select the correct court. If the case is borderline High Court, it might be better to take the case in the Circuit Court as it will be heard quicker, and the costs are less. Costs always must be taken into consideration as there is always a risk that you could lose the case. The costs in the High Court will be much higher than the Circuit Court. Relevant Facts in Establishing Loss • How the accident has impacted your life. • Medical Expenses – GP, hospital, medication, physio. • Loss of earnings/having to change line of work and receive less income. • Loss of enjoyment of life (sporting activity) Filing Your Claim In Ireland this is governed by statute but in general the case must be filed within two years from the date of the accident or the date you became aware of the injury. There are exceptions to the 2-year rule and your solicitor will advise you on this . The Personal Injuries Assessment Board (PIAB) Average Payments of Compensation • Minor Injuries: €5,000 to €15,000 • Moderate Injuries: €15,000 to €40,000 • Severe Injuries: €40,000 to €75,000 • Very Severe Injuries: €75,000 to €125,000+ Your solicitor will advise you on the range of compensation and all steps to be taken. Early contact with your solicitor is strongly recommended.
Common personal injuries occur when people slip on wet floors which can happen in shops, business premises or visiting a private house. County councils are obligated to keep pathways safe for pedestrian usage. Uneven footpaths have been the cause of many accidents and court cases. Where the fall is our own fault contributing to the accident and injury, it does not fully absolve the legal liability for the obstacle that causes the accident. Responsibility for keeping premises safe applies also to private homes and property. Businesses and local authorities are insured for such claims and many home insurers also cover these. In such a situation, where a claim looks likely, you should act immediately by: • Taking note of the date, time of day and place of the accident. • If any person witnessed the accident, obtain their name and contact details. • If it was a business premises, bring the matter to their attention to get it documented. Follow up by email/letter to start a record. • Ideally, take a photograph of where the accident happened and the obstacle that caused the accident. • Visit your GP (or hospital), keep record of same, who you saw etc. • If you wish to make a claim because of the injury, consult your solicitor. • Keep records of any medication and costs incurred. Property Owners There are exceptions where a court will find the property owner not responsible for the accident, these occur when: • You were a trespasser on the property (i.e. not permitted to be on the property). • Your actions caused the accident. • Another person would have avoided the hazardous obstacle. • The property owner took all reasonable procedures to prevent the accident. Alternatively, the property owner will be held liable if: • The owner had not taken all reasonable steps to avoid an accident happening. • The obstacle that caused the accident was made by the property owner or an employee who knew or should have known of the danger. Compensation : Not all accidents require hospitalisation so in these less serious claims it is important to keep notes of any financial loss incurred that relate directly to the acccident. So, early contact with your solicitor is vital in assessing whether it is worth taking a case at all. Where a property owner disputes the claim then you must prove that they were negligent. If a court is not satisfied that the property owner was responsible, then you will incur their legal costs as well as your own. So, discuss the claim with your solicitor who will advise you on all matters involved. Your solicitor will advise you also in what court to take the case, i.e. High Court, Circuit Court or District Court.
The tenant moved into a three-bedroom house in Swords, Co. Dublin in 2019 and paid a rent of €1,900 a month. She never queried the rent until a neighbour informed her in the summer of 2023 that the previous tenant had been paying €1,500 pm. The tenant said that she was not familiar with the RPZ rules and only that she was served with a notice to terminate the lease that she went onto the RPZ website and read about her rights as a tenant. The tenant claimed that she asked the landlord how much the previous tenant had paid but she claimed that he told her that it was none of her business. The landlord claimed that he was never asked by the tenant what the previous rent was. The landlord told the Residential Tenancies Board (RTB) that the previous tenant had rented the house from October 2015 to July 2018 at a monthly rent of €1,500. The RPZ rules came into operation in December 2016. As the house was located in a designated RPZ zone, the maximum annual increases the landlord could apply was 4%. On this basis the maximum he could have charged the tenant at the start of the new tenancy in 2019 was €1,754 per month. Therefore, there was a monthly overpayment of €145.21. The landlord said he entered the lease agreement in good faith and in compliance of the law as best he could. The RTB awarded the tenant €8,500 for the overcharging of rent. Germaine v Horgan Residential Tenancies Board Ref No.: TR0824-007961, 8 January 2025.
A Circuit Court appeal was heard in the High Court where the underlying proceedings were taken pursuant to section 62 of the Registration of Title Act, 1964 (as amended by the Land and Conveyancing Law Reform Act, 2013). The plaintiff in the case had sought an order for possession in respect of a charge on registered land. The Circuit Court judge granted the order for possession. The defendant, a lay litigant, appealed the order to the High Court. There was an alleged change in the ownership of both the registered charge and the underlying debt secured upon the charge to the plaintiff in these proceedings, namely, Pepper Finance Corporation (Ireland) Ltd. The transferee (Pepper) made a substitution application to the High Court in March 2023 by way of an ex parte application. The application was made pursuant to Order 17, rule 4 of the Rules of the Superior Courts. The original plaintiff was KBC Ireland plc. The standard practice in granting these ex parte orders is a provision that the defendant is informed, in writing that (a) a copy of the affidavit and exhibits grounding the substitution application be made available upon request (b) that an application may be made to court to set aside the order (c) that the defendant has an entitlement to contest the transfer of the loan and/or any security involved to Pepper at the hearing of the action. The form of the order made by the court is that Pepper has effectively stepped into the shoes of the original plaintiff KBC Ireland plc. The first issue the judge had to consider was whether the substitution order made in favour of Pepper was correct. The judge referred to a judgment of the Court of Appeal in Irish Bank Resolution Corp. v Halpin [2014] IECA 3. Here the view of the Court of Appeal was that rather than Pepper stepping into the shoes of KBC Ireland plc, the appropriate order is that the transferee is joined to the appeal as a second plaintiff. The decision in Halpin has been followed in Permanent TSB Plc v Morrissey [2017] IEHC 18 in the context of an appeal from the Circuit Court. Therefore, in adopting the Halpin case, there was an issue before the court as to whether the order made in the present appeal was correct in that it released the original plaintiff (KBC) from the case. Pepper’s counsel attempted to make a distinction between an appeal from the Circuit Court to the High Court, and an appeal from the High Court to the Court of Appeal. However, the presiding judge felt he did not have to rule on this, nor the grounds of appeal from the appellant on the competing considerations as he felt that there was a significant point of law to be decided upon and which was one that should be decided by the Court of Appeal. As it stood, the court was bound by the judgment of Halpin though counsel for Pepper tried to distinguish Halpin from the present case and this stating the court was not bound by Halpin. The judge thus adjourned the appeal proceedings to allow the preliminary jurisdictional issue to be determined by the higher court. Pepper Finance Corporation DAC v Tracey O’Reilly High Court [2024] IEHC (ex tempore)
The plaintiff’s claim arose from an incident where he maintained that his wheelchair was stopped at a road junction when it was struck by the defendant’s taxi shortly before midnight on the night of 7th May 2017. He took his case to the Circuit Court for pain in his shoulder and arm, and a graze to his hip. The plaintiff claimed that four days after the accident he went to his GP, then a second time the following month and he continued to receive treatment from the wheelchair association physiotherapist. He claimed that the defendant’s taxi struck his wheelchair on the right-hand side, and he tumbled out of the chair onto the middle of the road. He told the court he only had particular recollection of the incident through ‘flashbacks.’ He said his self-esteem took a blow when he was no longer able to compete at an elite level of his sport because of his shoulder injury. The legal teams for both sides disputed whether the plaintiff was on the incorrect side of the road when using his wheelchair. On the night of the accident, the plaintiff had dinner at home and then went to a pub between 5:30 pm and 6:30 to watch a football match and have a few drinks. He remained in the pub until close to midnight. He admitted that he ‘probably drank a pint an hour.’ On being challenged on his state due to alcohol, he answered, ‘I was not drunk…I was not sober’. A Garda, who was at the scene, said the plaintiff was very intoxicated. He said the plaintiff verbally abused him and the ambulance staff who were trying to assist him. The garda also said that the plaintiff would not give a description of what had happened. The plaintiff’s explanation for this was that he must have been disoriented and confused after the accident. He said he had a pain in his head. The hospital staff had to be alerted as well as security staff because of the plaintiff’s aggressive and abusive condition. Counsel for the defendant asserted that the plaintiff was ‘stocious drunk’. The defendant stated in evidence that his taxi was stopped at the junction and that the wheelchair ran into the taxi, with the point of impact being the front registration plate. The plaintiff also gave the wrong address for the accident, so an engineer consulted for the plaintiff examined the wrong junction in 2017, then several years later examined the correct junction. The judge dismissed the plaintiff’s case ruling that there was no liability against the taxi driver for the accident and he was satisfied that the taxi vehicle was stationary. The evidence of the plaintiff could not be relied upon. Costs were awarded against the plaintiff. Hegarty v O’Halloran Cork Circuit Court (His Hon Judge Sheehan) 15 January 2025.
This case concerned an alleged breach by the Child and Family Agency in releasing personal data which the plaintiff claimed was negligent on their part and a breach of their duty in regard to highly sensitive information concerning the plaintiff. This confidential information was circulated to a third party without the consent of the plaintiff. The sensitive information related to abuse suffered by the plaintiff during her childhood. The defendant accepted that a personal data breach had occurred. They conceded that sensitive information was released to the person, the subject of the abuse allegations, and other family members of the plaintiff. The plaintiff claimed that the breach caused damage to her relationship with her family and that she suffered upset and distress as a result. As the defendant accepted that they were responsible for the breach, the court only had to decide on what damages should be awarded. The judge was guided by the decision of Kaminski v Ballymaguire Foods where €2,000 was awarded for non-material loss. In that case, the plaintiff’s personal data, captured via CCTV, was used without the consent of the plaintiff for workplace training. The judge in applying Kaminski, held that given the private and sensitive nature of the childhood sexual abuse allegations, the data breach was sufficiently serious to justify awarding compensation and thus awarded €7,500 to the plaintiff. The court accepted the plaintiff’s evidence and noted that the defendant provided no evidence regarding any steps taken to mitigate the damage caused to the plaintiff. However, the defendant had apologised to the plaintiff, several months after the personal data breach occurred. The fact that the agency took no steps to mitigate the damage to the plaintiff, undoubtedly had a negative effect on their case. M.H. v Child and Family Agency, Circuit Court [2023] IECC 11 ex tempore
James Prior, a twelve-year-old sued the HSE through his mother for the care he received after his birth. It was claimed that he suffered difficulties because of the care and management by the hospital. It was submitted to the court that he had missed many milestones in his life. He did not smile until he was three months old and did not walk until he was three. His claim was that there was a failure by the hospital to exercise reasonable care in and around his management and treatment in the neonatal period. He was born in Mullingar Regional Hospital in 2012 but was transferred to a Dublin hospital when he became unwell. The court heard that a cranial ultrasound on the day after his birth was clear, but five days later it showed difficulties with the baby’s brain cells. Emergency measures should have been taken it was submitted. The transfer of the baby to the Dublin hospital was a two-hour journey by ambulance. In the case heard in the High Court, the HSE denied all of the claims. The case was settled by mediation between the parties and the matter came before the High Court to approve the settlement. The terms reflected a 25% reduction on the full value sought to account for the litigation risk in the case. The matter will come before the court again in the future to assess James’s loss of earnings and future care needs. The amount agreed between the parties in mediation and approved of by the court was €1,500,000. James Prior (Suing by His Mother, Tracey Carroll) v HSE High Court (Coffey J) 11 December 2024.
An interesting case came before the High Court where a plaintiff sought permission to amend his statement of claim. The plaintiff, a lay litigant, was suing a receiver and vulture fund for the alleged wrongful repossession and sale of his business premises after he fell into arrears with the mortgage on the building. The plaintiff issued a plenary summons in November 2020. The statement of claim was delivered in July 2021. This was followed by the discovery procedure in which there were delays and in April the plaintiff proposed to amend the statement of claim by email to the defendants. The defendants opposed the amendment, and the matter came before the High Court for decision. During the hearing, the defendant agreed with the plaintiff on some items which could be readily amended. The plaintiff relied on Rossmore Properties Ltd v ESB [2014] IEHC 159 to allow him to make the amendments. The Rossmore case emphasised that amendments to pleadings should generally be allowed unless they caused real prejudice. The plaintiff claimed that the amendments were essential to his case and that there was no causal connection between the alleged delay or content in his proposed amended statement of claim and the prejudice asserted by the defendants in respect of any alleged missing documentation. The plaintiff further alleged that any lapses attached to the defendants' failure to comply with their obligation to keep in safe custody all documents required for litigation prior to initiating any legal actions and until conclusion of such actions. The defendants complained that some documents sought by the plaintiff were no longer available by the originating bank (PTSB) and the plaintiff’s request for documents that went back to 2002 prejudiced them. The vulture found had requested such documents from the bank but these were no longer available. The plaintiff claimed the defendants were negligent in failing to keep all relevant documentation safe. The defendants also objected on the grounds that many of the amendments sought contradicted the Statement of Claim already filed. The judge cited the provision in the Rules of Court: Order 28, rule 1 of the Rules of the Superior Courts 1986, as amended (“RSC 1986”) provides for the amendment of a Statement of Claim, as follows: “The Court may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.” The judge then examined the applicable principles as found by the Court of Appeal 15 in Stafford v Rice [2022] IECA 47 and applied by the High Court in McDonald v Conroy [2024] IEHC 69. The principles for an amendment to a Statement of Claim were established by the Stafford case and overruled the findings of the Rossmore case. The grounds set out by the plaintiff did not comply with the principles of the Stafford case. Accordingly, the judge allowed the changes that had been agreed between the parties but rejected all other amendments sought by the plaintiff. Kelly v Fennell and Link Services Ltd High Court (Bradley J) 28 January 2025.
A judge in a recent case explored the common law view on occupiers' liability when it comes to ordinary everyday dangers described as ‘usual’, and which do not attract liability. The case was appealed from the High Court. The common law duty of an occupier to a visitor was to use reasonable care for one’s own safety. In the case before the court, the defendant was a well-known operator of fuel-stations with convenience stores throughout Ireland. The plaintiff, who was five months pregnant, lives near the Strand Road station of the defendant. On driving to work on the morning of 26 August 2016, just after 7 am, she stopped at the station for a take-away coffee. She parked in front of the convenience store in a designated space on the garage forecourt with the intention of getting the coffee and walking across the road to sit on a park bench beside the strand to watch the sun rise over Dublin Bay. Where she parked, there are three bays perpendicular to the store on either side of the entrance. She parked in the middle space on the right side facing the store. The space to her right was empty. The three spaces were ‘bookended’ at the right extremity by a raised pavement, described as a ‘nib pavement’ bounded by standard concrete kerbstones. After the plaintiff got her coffee, she walked to the back of her car intending to cross the road to the strand. When she came to the nib pavement, she tripped over the kerb and fell forward onto the ground. The accident was caught on CCTV which showed the sun was very low in the sky and the plaintiff was facing it wearing sunglasses as she walked. It was clear that she did not see the raised kerb immediately before she fell. The plaintiff accepted in evidence that as she lived near-by she must have visited the station before and must have been aware of the nib pavement. She said she could not take the route to the strand along the footpath in front of the store because it was blocked. Both parties had expert forensic engineer witnesses. The plaintiff’s expert said that the plaintiff was presented with a trap situation, that is because the footpath was blocked, she had to take the route she took. He said, typically these kerbs are painted yellow or dished and in his opinion the defendant was in breach of section 3 of the Occupiers’ Liability Act, 1995. The defendant’s expert witness had a different opinion. He said the kind of pavement the fuel station had was a common part of the vernacular of car park design. He described the kerb as ‘widely found, is common and ubiquitous.’ He agreed that some kerbs are painted but said this was rare and most kerbs were not marked. He described the parking arrangements of the defendant as ‘normal and very familiar arrangement on concrete footpaths and tarmacadam streets.’ The plaintiff stressed the point that the pavement immediately in front of the store was blocked and had this not been the case she could have taken the different route and avoided the accident. The High Court judge found that the safe exit route was blocked by the defendant’s obstruction and amounted to negligence and breach of duty of care by the defendants towards the plaintiff. The defendants appealed to the Court of Appeal. The central point of the defendant’s appeal was that there was no evidence before the High Court to suggest that the pavement nib was an unusual danger of a kind that attracted liability under the 1995 Act and that the High Court judge in her conclusions failed to have regard to the fact that it was undisputed that the nib pavement was a commonplace feature to be found not only in garage forecourts but in street and car park architecture generally, both in public and private. The Court of Appeal was satisfied that there was no true causal link between the obstruction of the footpath and the plaintiff’s accident. It pointed out that there were any number of reasons why the plaintiff took the route that she did. There was nothing to suggest that the defendant had a duty to the plaintiff to provide a footpath at all, and accordingly, whether it was blocked or not was irrelevant. The primary difficulty with the finding of negligence is that it was arrived at without any reference to whether or not the nib pavement constituted a danger in respect of which the defendant failed to take reasonable care to ensure the plaintiff was not injured. For this, the Court of Appeal considered the common law duty of care before the 1995 Act. Judge Peart in the case of Lavin v Dublin Port Authority plc [2016] IECA 268 cited the 1959 case of Long v Saorstat Eireann 93 ILTR 137 in which Murnaghan J said in relation to the duties of an occupier: ‘The plaintiff had to establish that the defendants had failed to take reasonable care to prevent the damage from unusual danger which they knew or ought to have known.’ Peart J in considering the Lavin case said that section 3 of the 1995 Act reflects the common law principles and put it on a statutory footing. Decision of the Court of Appeal There was no evidence in this case that the nib pavement constituted an unusual danger. In fact, the opposite was the case. Considering the two expert witness’s evidence, the court found the defendant’s expert witness gave the clearest evidence which went largely uncontradicted. The court considered the undisputed evidence, the law and common sense in everyday life and could come to no other conclusion but to allow the appeal finding that there was no breach of the 1995 Act by the defendants. Kandaurova v Circle K. Energy Group Ltd 2025 [IECA] 13.
