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PERSONAL INJURY

*SPOILER ALERT* At some point in our lives, most of us will be injured in some way. Often these injuries are our own fault. However, what rights do you have when that injury happens as a result of someone else's actions, or lack thereof?

Read on to find out what the law says you can do.


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This page discusses:

Tort Law,

Negligence,

Suing under multiple headings,

Employee Injury,

Defences to claims,

How to bring a claim,

Motor vehicle related injuries.


Let's say, for example, that you receive an injury as a result of a slip in a supermarket. Let's say that some mustard has fallen on the floor, has been there for some time, and you come along and tread on the mustard, fall, and break your right wrist. You are now severely injured and can no longer carry out your job as a right hand glove tester.

Are you entitled to be compensated for the injury you have received and is the supermarket liable in law for failing to prevent this accident from occurring?

TORT LAW

What we are in fact dealing with here is the law of 'Tort'. Tort law is an ancient legal system that goes back to the Roman period and can be seen as the other side of the coin to Criminal law. In Tort law Plaintiffs sue Defendants for damages (usually money) or other remedies (such as an injunction) in order to restore the Plaintiff to the position they were in prior to the breach of duty or breach of contract. 

Criminal law is not prosecuted by individuals against one another but by the State, via the Director of Public Prosecutions, against accused individuals and the punishments can include prison and, or, serious fines. In a criminal sentence the fine is not payable to the victim but goes to the State coffers. The victim may then bring a separate case against the accused in the civil courts (enter Tort Law) in order to receive compensation.

So, in the present case, in order for you to be restored to the condition you were in before you were injured the supermarket would have to have a magic wand and undo the damage caused to your wrist. This is somewhat unlikely and, therefore, you may bring a case, known as bringing an action, against the supermarket in the civil courts. You may be entitled to recover damages equal to the amount that you have lost as a result of not being able to work. This is known as Economic Loss and is generally dependent upon an accompanying physical injury. Courts are less likely to impose liability in the absence of any physical injury as this would be straying into the realm of Contract Law; though it does happen. Anyway, we won't go there today. You may also be entitled to recover damages for the actual injury itself, based on the Book of Quantum. More on that below. 


NEGLIGENCE

In order for liability to be imposed in the majority of Tort cases, there needs to be an element of Negligence. Negligence is what happens when a party (here the supermarket) breaches their legal duty to take care which results in damage to the plaintiff (you). It consists of the doing of an act which a reasonable person would not have done, or, the failure to do something which a reasonable and prudent person would have done. The test for negligence is as follows:

(a) a duty of care must exist between the parties;
(b) there must be a breach of that duty;
(c) damage must occur which was reasonably foreseeable; and
(d) a causal link must exist between the breach and the damage.

In the present case a reasonable supermarket would have dispatched an employee to cordon off the mustard and remove the hazard expeditiously.

Ultimately, in any personal injury case under negligence, the challenge is proving that the acts or omissions of the defendant CAUSED the injury you sustained. Without a causal link, the chain of negligence is broken and, thus, the test is not satisfied.


CAN YOU SUE UNDER MULTIPLE HEADINGS?

There are lots of routes you may go down simultaneously when suing the supermarket. For example you may be able to sue under the Occupiers Liability Act 1995 since you are on the premises as a visitor and have suffered an injury.

You may sue under Negligence, as set out above, for the failure of the supermarket to prevent an injury occurring which was indeed reasonably foreseeable.

You may sue for loss of earnings by way of economic loss. You may also be entitled to special damages such as medical expenses, etc. 


EMPLOYEE INJURY

If you were an employee of the Supermarket you would also be entitled to rely on S.8 of the Safety, Health and Welfare at Work Act, 2005 for failing to provide you with a safe place of work. Check out this newspaper report which is remarkably similar to our example scenario. Totally coincidental, honest! 

Employees may even find that they can sue for breach of contract provided the employer has set out terms in the contract stating that they will provide a safe working environment for you. 

Be sure to head over to the Worker's Rights page of this website for further information on employee rights. 


DEFENCES TO PERSONAL INJURY CLAIMS

There are many, many factors which play an important role in these cases and sometimes there are defences available to the Defendant which can limit or nullify their exposure to liability. 

For example, were the supermarket notified of the spill and were staff members on the way to clean it up?  
Did they place wet floor signs around the area until the floor was clean and dry?  
Did you see the mustard and walk on it anyway? This would be classed as contributory negligence and would lessen the amount of damages awarded to you. 
How long was the mustard on the floor before you stepped in it? If it had just happened moments before the accident then it may not be reasonable to impose liability since supermarket staff are, as far as I'm aware, not omnipresent beings. 
Were there any signs or notices displayed which warned of such dangers on the premises? These are known as policies and may serve to limit the level of exposure the supermarket faces. See S.5 of the Occupiers Liability Act, 1995
Every case of this nature will turn on its own facts and, sometimes, these facts may indeed serve to benefit the defendant rather than the plaintiff.

The scenario set out here is not dissimilar to the facts of Mullen v Quinsworth [1990]; case wherein an elderly shopper slipped on some cooking oil and sustained an injury. On appeal to the Supreme Court Griffin J noted that, as an invitee of the defendant supermarket, the shopper was not guaranteed to be safe from injury but that a general duty of care certainly was owed to her:  

"The plaintiff was an invitee of the defendants on the occasion of the accident. As such, the defendants were not insurers of her safety, but they owed her a duty to take reasonable care, in all the circumstances, to see that the premises were reasonably safe for her. Whilst this is the general principle which applies in cases of invitees, each case must necessarily depend on its own particular facts." - Griffin J @ para 6.

HOW TO BRING AN ACTION FOR PERSONAL INJURY

The process for bringing a claim for personal injury is reasonably straightforward. First and foremost you need to go and see a reputable Solicitor who will hear your story and then advise you on whether you have a viable case or not. The next step, presuming you do have a case, is for the Solicitor to send an 'O'Byrne letter' to the defendants asking them to admit liability in an open letter or else face the prospect of being brought to Court. The O'Byrne letter can then be used to fix the defendant with legal costs in the event that they fail to respond or refuse liability, should the case end up in court.

If the respondents refuse liability then your claim goes to the Personal Injuries Assessment Board, or PIAB, who will assess the facts of the case, determine the level of injury sustained and cross reference that against the Book of Quantum; a list of injuries paired with minimum and maximum amounts which may be awarded. You can view the Book of Quantum be clicking HERE. All personal injury claims which are not settled via the courts should go through PIAB. PIAB have compiled a very useful list of commonly asked questions which can be viewed by clicking HERE.

The respondent is then notified by PIAB of your claim and can either agree to have PIAB handle the claim or refuse and go to court. In most cases the respondents, represented by their insurance companies, will agree to this rather than continue to argue the case in court. PIAB will then determine the amount you are going to be awarded, the parties will agree on the amount and the matter is settled.

In the event that you reject the settlement amount as determined by PIAB and choose to go to court to try your luck there, you may well be awarded less damages and, if so, will also be liable for legal costs. If the other side are the ones who reject the amount offered by PIAB then it will be they who are made liable for costs. 


MOTOR VEHICLE RELATED INJURIES

Where a person is injured as a result of a car crash or other motorised vehicle related incident it will be the company who underwrites the insurance policy that will become liable for compensation. This is, to put it bluntly, the entire raison d'être of the insurance industry.

The insurance company could then, if they so choose, seek to recover that money from the insured person they represent. This is called subrogation.

Where a person is injured, and the offending person is not insured, the injured person may submit a claim to the Motor Insurers' Bureau of Ireland (MIBI) who will then pay out in the place of the uninsured person. This service is also available to the victims of unidentified drivers who, perhaps, have crashed into someone and then fled the scene. 

The MIBI acts as 'Compensation Body', enacted following the EU Motor Insurance Directive 2000/26/EC, where Irish citizens make such a claim in another EU member state. 

All car insurance companies in Ireland are required under S.78 Road Traffic Act, 1961 to be members of the MIBI. The MIBI are then funded by subsidies paid by each of the insurance underwriters (insurance companies) in Ireland. 


FURTHER READING

Further information on the personal injuries compensation process can be found on the citizen's information website HERE.


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