More personal injuries case dismissed as plaintiffs lacked "common sense"

Brendan Burgess

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Two women injured while getting off child’s swing in separate incidents lose damages claim

Judge says ‘common sense’ would tell any adult they should not use swing for children
www.irishtimes.com

Two women have lost their separate High Court damages claims over minor ankle injuries suffered as each got out of a ‘bird’s nest’ basket swing in a children’s playground on two different occasions.


In dismissing both cases, he voiced concern about the “chilling” effect of such litigation, even when unsuccessful, for the provision of play facilities for children and the freedoms of all citizens.

Such cases are more appropriately brought in the District Court, where legal costs are much lower than the High Court, he said.

There are economic reasons why an impecunious plaintiff with an unmeritorious claim for a minor injury, who is hoping for a settlement, would choose to institute proceedings in the court where legal fees are the highest, since there will be greater incentive for a defendant to settle the claim, he said.

If there was any entitlement to damages here, he considered a reasonable and proportionate award, based on principles set by the courts, would be between €5,000- €7,500 and not the €54,700 sought. In reaching that conclusion, he said he was not relying on the new guidelines on damages for personal injuries, he added.
 
There has to be some system of dealing with these claims.

Tipperary County Council will have spent a fortune defending these claims.

I presume the judge awarded costs against the plaintiffs, but even if they did, the Council is very unlikely to ever recover their costs.

Maybe a preliminary hearing very early on where the judge can make an order that the plaintiff must lodge costs if they want to take a case.

Judge "Were you an adult on a child's swing?"
Plaintiff "Yes"
Judge"OK, it is very likely that you will not win your case. Therefore if you want to proceed, you are to lodge €30,000 costs in court which will be returned to you if you do win your case."
 

While I agree with you that these frivolous law suits are a drain on public funds in addition to being an enormous waste of the courts time, I don’t see a pre lodged amount to get your day in court ever getting off the ground as it would be an impediment to regular people bringing cases due to them not having any appropriate level of funding.
It would absolutely stop the chancers trying to get an unjustified payout but the civil liberties agencies would be all over this immediately.
 
Their necks are obviously harder than their ankles...
 
odyssey06 said:
The solicitor who took the case for them ended up with nothing either. That's one way the message will get through, those solicitors needs to start filtering the cases.
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And, given that it was a High Court case, neither would their barrister(s) - or any professional witnesses (medical consultants or engineers) whose services they might have employed to give evidence! (My mate the Hospital Consultant used to love being a medical witness in compo cases, because it was a handy source of extra money!)
 
Unbelievable that it ever got to court at all. That adults ever took the case, that a solicitor took it on!!! They were after all on a swing for kids.
 
blanketyblank said:
Unbelievable that it ever got to court at all. That adults ever took the case, that a solicitor took it on!!! They were after all on a swing for kids.
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I suspect that the expectation might well have been that the County Council would make a settlement offer before the case actually came to court. (Possibly based on the solicitor's previous experience of making similar claims.)
 
Eireog007 said:
I don’t see a pre lodged amount to get your day in court ever getting off the ground as it would be an impediment to regular people bringing cases due to them not having any appropriate level of funding.
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My proposal is that anyone could still bring a case as they can at present.

But after proceedings are lodged there would be a special preliminary hearing to do with costs.

The judge would give an initial view and if he considered it frivolous or vexatious or a try-on, he would then require costs to be lodged.

For example, he could direct that it be heard in the Circuit Court but if the plaintiff wanted to go to the High Court, then they would have to lodge the costs of the other side to do so.

Brendan
 
I know publicans who faced claims which they felt had no merit whatsoever but they had to settle because it was so much cheaper than the potential legal fees of both sides. And they were in a lose-lose situation. Even if the case were dismissed, they would still have to pay their own substantial legal costs as they had no hope of getting them from the defendant.

Brendan
 
If only it were so simple!

In many cases, claimant solicitors will ask for money to pay for medical reports, engineers report and other outlays well in advance, especially if they feel it is a 'bum''case. Also some will have asked for money up front for barristers fees and (of course) their own. People paying a couple of hundred every few months think they are onto a sure thing. Only sure loser is the successful defendant, who must pay all his/her own costs, either themselves or via their insurers and higher premiums.
 
If solicitors were to bear some of the costs of the winning side when their client is unable to pay, that would stop the practice very quickly.


The other option is to do what Dublin bus has done - they go after every cent of costs and apply for judgement. This is known and just like magic the number of dodgy cases against Dublin bus is negligible
 
peemac said:
The other option is to do what Dublin bus has done - they go after every cent of costs and apply for judgement. This is known and just like magic the number of dodgy cases against Dublin bus is negligible
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The state in general should be more rigorous about this. Benefits and tax credits can be targeted in this way.
 
I see that one of the losing claimants poured out her soul to Joe Duffy (and the Irish Nation) this afternoon and is going to appeal.

One interesting thing that she said was that she "had only initiated the action as she wanted the swing to be made safer [and that] it had been her barrister’s decision to take the case to the High Court"

I wonder if this was the same barrister who has now advised her to appeal!


Woman who lost case over playground swing injury plans to appeal

Speaking on RTÉ radio, Susan O'Mahoney said she would have to pay upwards of €20,000 legal costs over swing that was 'an accident waiting to happen'
www.irishexaminer.com
 
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