What you must know about Litigation!

What you must know about Litigation!

Litigation is a topic frequently covered in the media, but what is litigation. From the mica scandal where homeowners claim defective blocks are causing their homes to crumble, to the case of school teacher Enoch Burke who refused to address a transitioning student by their preferred name and pronoun, most people in Ireland would have heard about a dispute between two or more parties that has ended up in court.

What is Litigation?

In simple terms, litigation is a legal process used to resolve disputes. It usually involves taking legal action in court, but can also include alternative dispute resolution methods, such as mediation or arbitration. Court action is usually taken when all other methods of negotiation have been exhausted.

Litigation can be a complex and daunting prospect and can be highly emotional. It can also be a complex and time-consuming process and may not always be the best option for resolving a dispute. However, in some cases, it may be the only way to seek justice and protect your rights.

Litigation can be used to resolve a wide variety of disputes, including personal injury claims, breach of contract disputes, boundary disagreements, family law matters, professional negligence claims and defamation. Following are some examples of the types of disputes that can be resolved through litigation.

Judicial Review

In Ireland, a judicial review is a process where a court reviews whether a decision or action taken by a public body or official is in alignment with the law. For example, if a person or group believe a planning decision made by a local authority to be unlawful or unfair, they could bring a legal challenge through a judicial review. In this case, litigation would be used to challenge the decision and request a review of the local authority’s decision-making process. If the court finds the decision-making process was not carried out in accordance with the law, they can order the local authority in this case to take reverse their decision or make appropriate, lawful changes to their course of action. This process helps to ensure that public authorities and officials act within the law and treat people fairly.

The dispute over the development of a bio gas plant in south County Galway provides a practical example of when a person or group might seek a judicial review. In January 2023, media reports covered the Gort Bio Gas Concern Group’s announcement of plans to seek a judicial review of An Bord Pleanála’s decision to approve a bio gas plant in the town, overturning two previous rejections from the Galway County Council. The Gort Bio Gas Concern Group believes the plant will have a negative impact on livelihoods, the local economy, tourism, the environment and people’s health and hopes a judicial review of An Bord Pleanála’s decision-making process will find in their favour, overturning the decision to grant planning permission and ultimately preventing the development of the plant in their town.

Contentious Probate

Another example where litigation is used to settle disputes is when family members or beneficiaries of an estate do not agree with the terms of a will. There are a number of reasons why a will might be contested, including the validity of a will and whether a spouse or child has been properly provided for in accordance with the law. This is known as contentious probate.

Undue Influence is another key reason people opt to challenge a will. Undue Influence describes a situation where someone manipulates or pressures a testator (the person making a will) into making decisions about their will that benefit the person influencing them. An example of Undue Influence is of an adult child that places pressure on their elderly parent to change their will and leave a larger share of the estate to them, to the detriment of their siblings and other family members. This is particularly relevant where the elderly parent is vulnerable or reliant on their adult child to some extent, and may feel unable to resist the pressure placed on them by their adult child.

If you are concerned about the terms of a loved one’s will and believe they may have been subject to Undue Influence when making their will, please get in touch with a member of our wills and probate team who can provide you with advice about your situation and what to do next.

 

Defective Products

Litigation is also an option when disputes arise over the performance of a product. Typically, a product is considered defective if it does not comply with the relevant safety standards or regulations that apply to the product in the country where it was sold.

Under Irish law, a person who is injured or has their property damaged as a result of a defective product may be able to make a claim for compensation. To be successful in their claim, they must prove the product was defective and is what caused their injury or damage to their property.

There have been several cases brought against the manufacturers and suppliers of defective concrete blocks in Ireland. Known as the “mica scandal” in media reports, homeowners claim the concrete blocks contained excessive levels of pyrite which caused significant structural damage. In this case, litigation has been used to seek compensation for the damage claimed to be caused by the blocks. Some cases have been settled out of court, while litigation continues with several others.

If you believe a defective product has caused you to suffer an injury or has damaged your property, a member of our team can discuss your options and advise whether you are entitled to seek compensation. You can trust our team’s experience and legal insight to help you navigate the litigation process and seek justice for the impact caused by a defective product.

Experienced litigation solicitors at Gibson & Associates LLP

At Gibson & Associates LLP, we understand that unresolved issues can be stressful and emotionally draining. That’s why our experienced litigation solicitors provide the support and in-depth legal expertise needed for our clients to pursue the next step in conflict resolution with confidence. Litigation may be the right choice if a legal dispute cannot be resolved through negotiation or alternative dispute resolution methods; our caring team will take the time to listen and understand your issue and provide advice on the most effective way to resolve your dispute.

If you are concerned about an issue or are involved in a dispute, please get in touch with a member of our team for advice about your legal options, on (01) 536 8223 or at email [email protected].

Have You Been the Victim of Unfair Dismissal

Have You Been the Victim of Unfair Dismissal

Has your employment contract been terminated? If your employer failed to follow the correct protocol, you could be the victim of unfair dismissal. This would permit you to make a claim under the Unfair Dismissal Act.

Read on to find out more about employee rights and unfair dismissal.

What is unfair dismissal?

Unfair dismissal is when your contract of employment is terminated without good reason. A dismissal is presumed to be unfair unless your employer has substantial grounds to justify it. According to the law, a dismissal might be justified if:

  • You are not capable of performing your role, perhaps due to lateness, absenteeism or ill health
  • You are not competent enough to perform your role
  • You do not have the qualifications required to perform your role
  • You have behaved in a way that amounts to misconduct
  • You are fairly selected for redundancy
  • Continuing with your employment would mean breaking the law
  • Other substantial grounds
  • If none of the above apply, your dismissal could be considered unfair.

It is important to note that unfair dismissal is different to constructive dismissal. Unfair dismissal is when your employer fires you. Constructive dismissal is when you take the decision to leave your job, but only because of your employer’s conduct.

Grounds for unfair dismissal

There are certain grounds for dismissal that are automatically deemed to be unfair. This includes:

Membership or proposed membership with a trade union or engaging in trade union activities
Religious or political opinions
Legal proceedings against an employer in which you are the claimant or a witness (for example, a personal injury claim)
Race, colour, sexual orientation, age or membership of the Traveler community
Pregnancy, giving birth, breastfeeding or any matters connected with pregnancy or birth
Exercising your rights to maternity leave, adoptive leave, paternity leave, career’s leave, parental leave or force majeure leave
Unfair selection for redundancy
Making a protected disclosure, meaning you raise concerns about possible wrongdoing at work (also known as ‘whistleblowing’)
Of course, your employer may try to cover their backs by pointing towards a justifiable reason for your dismissal – when in fact you are being let go for one the reasons outlined above. For instance, your employer may dismiss you shortly after you announce your pregnancy, yet he/she may claim that it is because you are not competent.

That is why the law places the burden upon the employer to prove that a dismissal is justified. In the above example, your employer would have to show that you fall short of the standard required of you, and that this has been explained to you. You should be told what improvements are necessary and given a reasonable amount of time to make these improvements. Only if the correct procedures are followed – and there really are substantial grounds for a dismissal – can an employer legally sack an employee.

Unfair dismissal redundancy

Claims of unfair dismissal often arise alongside a redundancy situation. In fact, redundancy is a fair reason for dismissal, but only if:

There is a genuine redundancy situation; and
The employee is fairly selected for redundancy; and
The correct process is followed
So, an employer cannot get rid of an unfavourable employee under the guise of a redundancy. Rather, there must be a bona fide reason for the redundancy. This could be that the company has stopped trading, is restructuring, or no longer requires that particular role.

Also, the employer must follow the correct procedures when deciding exactly who is going to be made redundant. It is not enough to simply pick on a particular employee – unless there is only one employee in the company or in that role. Instead, a selection criteria should be applied. For instance, it might be company practice to pursue a ‘last in, first out’ policy. Or, the decision could be based on employee attendance records. Any deviation from the selection criteria could amount to unfair dismissal.

Finally, employers must follow a set process when making an employee redundant. This includes consulting with him/her, looking for alternative roles, providing notice and providing redundancy pay. Again, a failure to follow the correct process could amount to an unfair dismissal.

Have I been unfairly dismissed?

Reading this, you might be wondering: have I been unfairly dismissed? The easiest way to confirm your legal position is to speak to our employment specialist . We can discuss the circumstances of your dismissal with you, establishing whether or not you have been the victim of an unfair dismissal.

Employee rights and unfair dismissal

If you have been unfairly dismissed, then you could be entitled to pursue legal action against your (former) employer. Indeed, employees are protected from unfair dismissal under the Unfair Dismissals Act 1977-2015. Should an employer be in breach of the law, then an employee is permitted to make a claim, either via the Workplace Relations Commission (WRC) or via the Labour Court.

If your claim is successful, then you will be awarded some kind of redress. This is typically a compensation award that reflects the financial losses you have incurred because of the unfair dismissal. It is also possible to have your job re-instated or re-engaged, although these remedies are rarely used because working relations are typically damaged beyond repair.

Who can claim for unfair dismissal?

There are rules around exactly who is allowed to make an unfair dismissal claim. The following grounds for unfair dismissal claims must be met, if you are to take the matter further.

You have been unfairly dismissed
Firstly, your dismissal must actually have been unfair. This seems obvious, but it is important to establish the basis for your claim at the outset. Otherwise you may pursue legal action that has little prospect of success.

As outlined above, there are certain grounds for dismissal that are automatically considered unfair. Some of the most common include unfair selection for redundancy, pregnancy/maternity leave, discrimination and religious/political opinions. Our employment specialist can confirm whether you have grounds for an unfair dismissal claim.

Your employer may deny that you have been dismissed. If so, you must provide evidence to the contrary.

You are an employee

Secondly, you must be an employee, as opposed to a contractor or self-employed person. Employees can work full-time or part-time. Agency workers are also covered by the legislation.

You have been employed for 1 year

Thirdly, you must have been continuously employed by the company for at least 12 months. Otherwise, you will not qualify for an unfair dismissal claim. There are some exceptions to this rule, including if you are dismissed on account of:

  • Trade union activity
  • Exercising your rights to maternity leave, adoptive leave, paternity leave, carer’s leave, parental leave or national minimum wage
  • Pregnancy, giving birth, breastfeeding or any matters connected with pregnancy or birth
  • Making a protected disclosure

If none of the exceptions apply in your case, you may still have grounds for a different type of employment claim. For example, if you are dismissed due to your ethnicity, you may be able to make a discrimination claim.

You were dismissed less than six months ago

Finally, you must adhere to the time limits that are imposed on unfair dismissal claims. The law states that you must make a claim within six months, starting from the date of your dismissal. You may be allowed to extend this timeframe to 12 months, but only if there is a reasonable cause for the delay.

Are part time workers covered by unfair dismissal?

We are often asked: are part time workers covered by unfair dismissal laws?

The answer is yes, part-time works are covered by the Unfair Dismissals Act 1977-2015. This means that if you are a part-time employee and you are unfairly dismissed, you will be entitled to make a claim – just as any full-time employee would.

Agency worker unfair dismissal

And what about agency worker unfair dismissal claims?

Agency worker unfair dismissal claims need to be assessed on a case by case basis. It might be possible to bring a claim against the employer who has hired you from the agency.

Apprentice unfair dismissal

Unfortunately, apprentices cannot claim for unfair dismissal. This includes apprentices who are in full-time training. It also includes statutory apprentices who are dismissed within six months of starting the apprenticeship, or who are dismissed within one month of completing the apprenticeship.

However, there are two exceptions to this rule. An apprentice unfair dismissal claim may be available if the dismissal relates to your:

Rights to maternity leave, adoptive leave, paternity leave, carer’s leave or parental leave
Pregnancy, giving birth, breastfeeding or any matters connected with pregnancy or birth
Unfair dismissal cases Ireland

Some unfair dismissal cases in Ireland are high-profile and involve high-earning individuals with senior roles. One example is a case that concluded in December 2019. The WRC ordered a tech company to pay a former Vice President €250,000 after his contract was abruptly terminated. The company had failed to comply with the rights and procedures contained in the company handbook.

Other unfair dismissal cases in Ireland do not make the news and involve individuals with a modest income. For instance, in January 2020, the Labour Court awarded €20,000 to a man who was unfairly dismissed from a call centre. He had been subject to disciplinary proceedings, but the Labour Court found shortcomings in the way these proceedings had been conducted.

Therefore, it does not matter what role you occupy or what company you work for. You do not have to earn a six-figure salary. If you have been unfairly dismissed, you deserve redress for the financial losses you have experienced.

Basic reward unfair dismissal

Compensation for unfair dismissal is limited to your financial losses. Compensation is not awarded for injury to your feelings or stress, as it is in some other jurisdictions. In fact, a basic award for unfair dismissal is usually capped at two years’ pay, or five years’ pay if you were unfairly dismissed for making a protected disclosure.

The WRC or Labour Court will calculate exactly how much you should receive based on your:

  • Present losses – meaning the money you lost in between your dismissal and the claim hearing. You must try to mitigate your losses by finding alternative work. If you start a new job straightaway, you will be given four weeks’ pay as compensation.
  • Future losses – which is an estimate of the money you will lose in the future, while you try to secure new employment.
  • Pension loss
  • Loss of statutory protection

Speak to our employment Specialist now

If you have recently been dismissed from your job, we understand the frightening position you find yourself in. You will suddenly need to find alternative employment, but meanwhile you must find a way to cover your outgoings. To make matters worse, you will probably be angry at being let go, and may be trying to determine what exactly you can do about it.

That is where we can help. The employment solicitors at Gibson & Associates can listen to the circumstances of your dismissal. Then, we will offer clear advice as to whether or not your dismissal was unfair. If so, we can manage the claims process on your behalf, getting the justice you deserve.

Sometimes, a resolution can be settled outside of court, whether through negotiation or a Settlement Agreement. Other times, a complaint must be made to the WRC, or action taken through the civil courts. We can recommend the best course of action in your particular case.

Don’t delay, please call us now on +353 1 264 5555 or complete our Online Enquiry and we’ll be delighted to help you.

Personal Injury Claim Our Solicitors Answer Your Questions

Personal Injury Claim Our Solicitors Answer Your Questions

Do I have a personal injury claim. Our head solicitor of our Personal Injury Department Amanda Walsh is based in Dublin, in our Capel Building office. Recently, I asked her what are the most common questions clients asked about a personal injury claims? Below are the questions that our Personal Injury team commonly respond to, and a brief answer to the questions.

Q 1. Do I have a personal injury claim?

Generally if you suffer an accident due to someone else’s fault you could have a personal injury claim. Or, if you can answer yes to either of the below questions, would give a good indication of you have injury claim eligibility:

Did the accident or incident cause me a visible injury, or pain (some injuries are not visible for example whiplash after a car accident), and not just damage to my property?
Do you suffer from psychological trauma as a result of the incident, for example depression or anxiety?
A personal injury claim enables you to recover compensation; for damages done to you physically, financially and/or psychologically.

There are many causes of personal injury from traffic accidents, trips and falls in public places, work accidents, medical mistakes etc., but, the accident generally should be the fault of another person(s) negligence.

No two personal injury claims are the same, many factors have to be taken into consideration. Even such factors as age and gender can impact on claims.

Q 2. When do I need to start the personal injury claims process? What is the time frame involved, and how long it will take to get a result?

So, you’ve been in an accident some time ago…maybe it’s too late to claim? Generally, in Ireland, you must start a personal injury claim within two years of the accident occurring. This is known as the statute of limitations, after the two years is up the case is barred. But, there can be some exceptions to the rule, for example, maybe the injured party was under 18 years old at the time of the accident.

The length of time it takes to process an injury claim can vary, but the Personal Injuries Assessment Board state that the average time frame is seven months. And we usually find it takes somewhere between six and nine months, then the payout of compensation normally happens within a month of finalisation from the Personal Injuries Board. But, if the claim ends up in the courts (litigation) the claim assessment could take up to three years.

Q 3. Who are the Personal Injuries Board and what to they do?

The Personal Injuries Board (PIAB) is Ireland’s independent government body that assess personal injury compensation claims. All personal injury claims go to PIAB (except Medical Negligence cases), unless the claim has been settled early by claimant and other parties involved. Your solicitor will deal with PIAB on your behalf.

PIAB will provide an assessment on your claim for compensation, its primary role is to quickly value claims and make awards that can be accepted or rejected by the claimant(s).

Q 4. Why are medical reports needed and what are the costs?

A medical report is required to prove that the reported accident caused the injuries that were sustained. This report will help prove injuries such as pain, loss and suffering; and details on the nature of the injury, the effects this will have on the injured and how long recovery is likely to take.

Your personal injury solicitor can request your medical reports, for you, from your doctor; reports need to be received within two months of the injured person being examined. Under Civil Liability and Courts Act, 2004, there are severe sanctions for inaccurate medical reports — the reports should be as accurate as possible of the injuries sustained.

Fees for medical reports can vary. Different GPs will have different charges, reports could cost in the region of €100, and some could go up to €400. If specialist’s medical reports are required this will cost significantly more. The injured person that’s making the claim usually will have to pay for these reports; but can claim the payment back, if their case is successful.

Q 5. If my injury caused me to be off work, what do I do?

If you wish to claim compensation for the injury, you should proceed to claim with the help of your solicitor. But, in the meantime you may be entitled to benefits to compensate for your loss of earnings. There are two scenarios here:

1. Was it a workplace accident that caused the injury?

If the accident happened in work or on the way to work, you should report the accident to your employer. Then, you should check your employment contract for sick leave entitlements. In the case of no entitlements, you could still be eligible for Injury Benefit: a payment from the Department of Employment Affairs and Social Protection

2. Was it an accident caused somewhere other than the workplace?

If the injury now has caused you to take sick leave, you can apply for illness benefit, subject to PRSI conditions. If it was a serious accident that is causing you to take leave of at least one year, then a disability allowance might be available to you. Your local citizens information office will provide you more information on these payments.

Q 6. What are the costs of the case? How much compensation do I get?

Your solicitor will discuss fees with you, there might be a no win no fee agreement. This is common in personal injury cases, it means that if the case is not successful, the claimant won’t have to pay legal fees. Other typical fees for personal injury cases include the Personal Injuries Board Application PIAB fee, this is set at around €45. And, then there is your medical report fee, as previously discussed.

Compensation depends on many factors, but guideline payout amounts for different injuries can be found in the PIAB Book of Quantum. Or, if you wish to look up an estimate of the typical compensation for an injury, you might find a personal injury claim calculator useful; many of these calculators can be found online.

Q 7. Will the matter go to court? And will the case be in the media?

Not normally. Most, probably over 90%, of personal injury cases are settled before reaching a stage of having to go to court. Usually, if the case ends up in court it’s because the parties involved have failed to agree on a compensation outcome. But, your solicitor will still prepare your case as if it will be presented in the courts.

Other times that personal injury cases end up in court are due to the Personal Injuries Board declining the case; this could be due to the nature of the claim, time frames involved, issues with the insurance company or the claimant’s medical prognosis.

You will sometimes read about compensation payouts in the media. But the majority of claims won’t be in the news. Claims might make the headlines if there’s a high profile individual or organisation involved; a large settlement agreed; or, the case is particularly unusual, e.g a lady sued Starbucks for putting too much ice in her… iced coffee! Yes, this happened.

Medical Misdiagnosis Ireland

Medical Misdiagnosis Ireland

A medical misdiagnosis can have dire consequences, potentially resulting in a poor outcome, reduced life expectancy, and prolonged pain and suffering. If this has happened to you or your loved one, please contact us now for expert legal advice. You could be entitled to pursue a medical negligence claim against those at fault.

Common types of Medical Misdiagnosis in Ireland

Medical misdiagnoses typically fall into one of three categories: 1. Misdiagnosed injuries 2. Misdiagnosed medical emergencies 3. Misdiagnosed chronic illnesses

Misdiagnosed injuries

GP surgeries and A&E waiting rooms are full of people who have sustained some kind of injury. It is the duty of the attending medical practitioners to investigate these injuries in full, and to carry out any tests that may be needed to confirm a diagnosis. A treatment plan should then be determined based on the results of these tests. Unfortunately, this level of care is not always provided. It is surprising just how many injuries go undetected. A patient may have to seek medical attention twice, three times, or even more in order to secure the correct diagnosis. In the meantime, their injury is left untreated, causing ongoing pain and suffering. The delay in treatment may also affect the ultimate outcome.

Example of a medical misdiagnosed injury

Take a fractured bone sustained following a fall, for example. The attending medical practitioner should note a patient’s symptoms of pain and swelling and the fact that he has recently fallen over. This should prompt the doctor to order some x-rays, which should then be assessed by an experienced radiologist. But what happens if the treating medical practitioner dismisses the idea that a bone has been broken? Then, x-rays are not carried out and the patient is sent home with a missed fracture. He continues his day-to-day life, suffering through the pain. He doesn’t go back to the hospital for several weeks because he has been told the bone isn’t broken. Eventually, he seeks medical help once again. This time x-rays confirm a fracture. But by now the bone has fused together in the wrong place. Consequently, surgery is needed to re-align the bone. This results in a prolonged recovery time, an operation, and an underlying weakness – all of which could have been avoided, had the fracture been correctly diagnosed when the patient first attended the hospital.

Common types of medical misdiagnosed injuries

Injuries that are commonly misdiagnosed include: • Fractures • Head injuries • Spinal injuries • Ruptured tendons • Torn ligaments • Birth injuries, particularly perineal tears • Eye injuries

Misdiagnosed medical emergencies

Medical emergencies are precisely that: an emergency. A correct diagnosis must be quickly obtained. This ensures medical staff is able to start the right form of treatment straight away. Only with this timely action does a patient stand a chance of making a recovery, whether in full or in part. Yet there are times when medical emergencies are misdiagnosed. Typically, a patient presents with symptoms, but these are misinterpreted by the GP or hospital staff. The patient is then either sent home or is treated for an entirely different medical issue. Their condition, therefore, deteriorates, potentially with disastrous consequences.

Example of a misdiagnosed medical emergency

Just imagine a case of appendicitis. Appendicitis is by no means unusual, but it is frequently misdiagnosed. What happens is that the patient presents to their GP or A&E department complaining of abdominal pain, possibly with vomiting and fever. These symptoms are red flags and should quickly lead medical practitioners to investigate the possibility of appendicitis. But instead of further diagnostic tests being carried out – or the patient being kept in hospital for monitoring – she is wrongly diagnosed with another illness such as gastroenteritis. She returns home but rapidly gets worse, suffering increasing pain, high fever, and more vomiting. Eventually, her appendix ruptures, causing the infection to spread across her abdomen. Without immediate treatment, a ruptured appendix is fatal. Treatment involves open abdominal surgery, rather than keyhole surgery (as would have been the case, had she been diagnosed earlier). She will be extremely unwell, will have a prolonged recovery time, and a significant scar across her abdomen. All of these outcomes could have been avoided, had the appendicitis been correctly diagnosed in the first instance.

Common types of medical misdiagnosed  emergencies

Medical emergencies that are commonly misdiagnosed include: • Appendicitis • Ectopic pregnancy • Ruptured bowel • Sepsis • Meningitis • Brain hemorrhage • Cauda equina syndrome • Heart attack • Organ damage sustained during surgery • Pulmonary embolism

Misdiagnosed chronic illnesses

A chronic illness can also be described as a long-term illness. It is not a medical emergency, and so does not require treatment within 24-36 hours of symptoms appearing. But nevertheless, a timely diagnosis is needed to alleviate the patient’s discomfort and to secure the best possible outcome. If an ongoing illness is not diagnosed, the patient’s condition will likely worsen, making it harder to treat. This might mean that treatment is ultimately ineffective. Or it might mean that more extensive treatment is needed, something which could have been avoided, had the illness been identified earlier.

Example of a misdiagnosed chronic illness

Many misdiagnosis cases relate to cancer. A patient may report certain symptoms, often returning again and again to their GP, only to be repeatedly misdiagnosed. The treating medical practitioner may mistake the symptoms for something else, perhaps dismissing the idea of cancer due to the patient’s age, or simply due to ignorance. Of course, what a GP should do is send a patient for testing, in order to rule out the possibility of cancer. If this is not done, then cancer will remain undetected for weeks, months, or even years. Alternatively, it could be that the patient is sent for testing, but the results are lost, misreported, or misinterpreted. When it comes to cancer, it is generally the case that the faster treatment is carried out, the more hopeful the outcome will be. If cancer is left to its own devices, it will grow and spread across the body, making it increasingly difficult to treat. Once it is discovered, medical practitioners may have no choice but to perform aggressive and/or invasive treatment. Or, it may be too late. This will be heart-breaking for the patient, as this bleak prognosis could have been avoided, had the cancer been detected in the early stages when he/she initially sought medical help.

Common types of misdiagnosed chronic illnesses

Chronic illnesses that are commonly misdiagnosed include: • Cancer • Diabetes/gestational diabetes • Kidney disease • Pregnancy complications • Crohn’s Disease

What are the effects of being misdiagnosed?

As the examples described above highlight, the effects of a misdiagnosis can be catastrophic. It can cause the patient: • A prolonged period of pain and suffering • The need to undergo more extensive treatment • A poor outcome • Long-term injuries and scarring • Psychological distress • Fatal complications If a patient does survive a misdiagnosis, the delay in treatment may continue to impact their lives in the long run. For instance, a missed wrist fracture can limit a person’s ability to carry out their job, meaning they have to seek alternative employment. A delayed diagnosis of cauda equina syndrome, whereby the nerves in the lower back are compressed, can result in paralysis, sexual dysfunction, and bowel dysfunction. Clearly, this will impact every area of a person’s life, affecting their career, relationships, and hobbies. All of this can also have a devastating effect on the patient’s family. Relatives and friends may need to act as carers, or take on additional responsibilities. This can also damage the family’s finances, especially if the patient is forced to give up work. Along with the physical and financial implications, there will no doubt be a degree of psychological harm. The patient will probably feel anger towards those responsible for the misdiagnosis. Knowing that the outcome could have been different will be hard to accept, and may result in resentment, depression, and post-traumatic stress disorder.

Can misdiagnosis be malpractice?

If this has happened to you or your loved one, you might be wondering whether the medical practitioners in question have acted negligently. The easiest way to answer this question is to contact us at Gibson & Associates for legal advice. We can advise whether you have been the unfortunate recipient of substandard medical care. We can also say whether you are legally entitled to pursue a claim for compensation. Before you contact us, you might be interested to know exactly when a misdiagnosis will amount to medical malpractice. Essentially, it all comes down to whether another competent medical practitioner would also have misdiagnosed the same illness or injury. So, if you attended A&E with a recent history of trauma and pain/swelling in your limb, would another A&E doctor also have failed to order an x-ray? If another competent doctor would have reached the same conclusion in the same circumstances, then there has not have been a case of malpractice. But if another competent doctor would have taken a different course of action, then the standard of care has fallen to an unacceptable level. If the medical care you received was substandard, then you could be in a position to make a medical negligence claim – but only if you have suffered some kind of harm. Occasionally, a misdiagnosis will not have any bearing on the final outcome. It could be that while the diagnosis was delayed slightly, a correct diagnosis was achieved quickly enough to avert adverse consequences. Or, it could be that the timing of treatment is not urgent, so a delay would not influence the patient’s condition. However, it is very likely that a misdiagnosis will cause you some kind of injury, be it physical, emotional or financial. If so, you could be entitled to compensation for your damages.

What should I do if I think I have medical misdiagnosed?

If you think you have suffered because of a medical misdiagnosis, we urge you to contact our solicitors as soon as possible. You could have grounds for a medical negligence claim. This allows you to take action against those responsible, ensuring that you are properly compensated for damages you have wrongfully experienced. It can be difficult to understand exactly why mistakes were made, and whether anyone is to blame. Medical practitioners and hospitals rarely admit fault, meaning you may be left with many unanswered questions. We can clarify your legal position, explaining whether you have been the victim of medical malpractice.

Call us now at +353 1 264 5555 or use our Online Enquiry form and we’ll be glad to assist you.

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Fall at Work

Fall at Work

It’s reported that every working day seven people are injured in a slip, trip or fall at work, or on the way to work. This is the highest cause of injury in the workplace. The HSA estimates that around 29% of non-fatal injuries are a result of a slip, trip or fall at work.

Sometimes, we’re asked, “ What should I do after suffering a fall at work?”. So, below we’ve outlined a few informational points on common causes of falls at work, high-risk jobs, what to do after a fall at work/steps to take, whether you can claim for a fall in the workplace, and slips, trips, and fall compensation.

Common causes of a fall at work

Different industries will have different typical causes of fall or slips in the workplace, but usually, these can be categorized into failures in health & safety procedures or falls caused by employee carelessness.

Every employer has a duty of care to provide a safe work environment, and will usually identify hazards to lower or prevent the risk of accidents in the workplace. But, failures in health & safety procedures still occur. On the other hand, employee carelessness in the workplace is a contributory factor for some slips, trips and fall accidents. Most workplaces will implement employee training helping to prevent these accidents.

High-risk areas in the workplace for slips, trips, and falls

There are reportedly places of higher risk for falls in the workplace, where more diligence is required. But, history does have a habit of repeating itself — so where slips, trips, or falls have happened before, it is likely to happen again.

High-risk areas include:

Steps and stairs. Every day someone has an accident on steps or stairwells, this most commonly happens while a person is walking down the steps and slips.
Wet surfaces or where liquids are stored or transported.
Mats, rugs, or uneven floor coverings.

Dangerous Jobs

Sometimes jobs that we would think of as being high risk or dangerous e.g. mining, firefighting, etc., aren’t necessarily the ones that cause the most accidents or injuries. Below is a list of the most dangerous jobs/industries in Ireland:

Farming
Construction
Vehicle garages
Manufacturing
Admin and support services
Transportation and storage
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Farming is Ireland’s deadliest occupation. Farmers are 10 times more likely to be killed at work than any other profession. Most fatalities are caused by taking risks with machinery and animals. There are many tasks on the farm that poses a risk of slips, trips and falls, these are the largest cause of non-fatal accidents on the farm.

These include:

Working at height
Working on uneven or slippery surfaces
Using ladders
Getting on and off tractors
Working in the milking shed
Working with vats, tanks, and silos
Working with livestock.
The second most hazardous occupation is the construction industry. Much work has been done to create a health and safety-first culture in the construction industry, but accidents and injuries are still high among sole traders and small firms. In 2017, a man died after falling from a ladder whilst working on a new house build.

HSA statistics:

“There were five fatal falls from height in 2016 and 2 in 2017. All involved small contractors or self-employed construction workers.”

“Falls, slips and trips were the main cause of non-fatal accidents in construction in 2017, with movements such as lifting, carrying, pushing, pulling, bending and twisting the next most common cause.”

What to do after a fall

Firstly, if you or the person involved in the fall has an injury, you should seek medical help. You should be aware to that sometimes soft tissue injury symptoms don’t appear for a few days, so if you notice pain at a later date it might be best to get it checked out. The doctor or hospital will complete a medical report; these reports are important and might be required at a later date.

Contact your employer

You need to inform your employer or supervisor of the accident and/or injury. There is likely to be a time limit on reporting an injury, so from a legal perspective, you need to report the incident as soon as possible. Sometimes this needs to be done in writing, so you should ask for the company procedure for reporting accidents.

Reporting the accident

Health, safety, and welfare at work regulations in Ireland oblige all employers and self-employed persons to report all accidents and injuries, that caused the employee to be absent from work for more than three consecutive days, to the Health & Safety Authority.

The details of the fall accident should be recorded in your employer’s Accident Report Log including details of the injuries sustained. You should keep a copy of this report as you might require this information if a claim is made against your employer for negligence.

It might be useful to keep a diary of time and dates, eyewitness reports, photographs, etc.

Common injury types from falls

A fall from heights is likely to cause the most serious of injuries. Out of non-fatal falls, the worst injuries are to the head, even what might appear to be a minor head injury needs medical attention — if there is swelling, bleeding or loss of consciousness treats it as a medical emergency. One of the most devastating types of head injury is Traumatic Brain Injury (TBI), severity varies but it can lead to permanent damage to the brain.

Other serious injuries from falls include back and spinal cord injuries, these injuries can cause serious pain and limited mobility, and immediate medical attention should be sought if this injury is suspected. On the other end of the scale, injuries include shoulder dislocation a condition called brachial plexus injury. Injuries on the other end of the scale include sprains and fractures, twisted knees, sprained ankles, arms, or wrists. Slips, trips and falls mostly lead to some form of musculoskeletal injury, and/or cuts and bruises.

Injury Benefit for Fall at Work!

If your fall at work injury forces you to take leave from work, you might be eligible for injury benefits. The payment is provided under the occupational injuries benefit scheme, find out more information on the Citizens Information website.

Can I claim?

Your employer has a duty to provide a safe work environment for employees. If you have suffered an injury physical or psychological due to someone else’s negligence, hazardous work conditions, or inadequate equipment, you are entitled to claim compensation for the pain and suffering caused. How do you know if you have a personal injury case?

Slips, trips, and falls are common in the workplace and not all will be eligible for compensation. For a claim to be successful, negligence or blame must be established. There may be more than one employer involved in the negligence, this is where contributory negligence comes into play.

Contributory negligence also applies to the victim of the accident, i.e how the victim’s actions, or lack of actions, led to the accident an example would be the injured party not wearing inappropriate footwear.

Case example: A shop manager in Dublin received €47,000 after suffering a knee injury from slipping on a wet floor in her work premises. Liability was admitted by the shop, so no assessment of contributory negligence was made.

It’s best to get your personal injury solicitor involved now, he/or she will talk you through your claim eligibility and the steps you need to take.

Where do I submit a claim?

Claims for slip, trips, and falls are made through the Personal Injuries Assessment Board (PIAB), applications should be submitted along with your medical reports and a copy of your employer’s accident report. It’s recommended to hire a personal injury solicitor, they will take care of this application for you and all necessary documentation.

Fall at work claims should be initiated within two years of the accident occurring, this time period is legally known as the statute of limitations.

Fall at work compensation Claims:

Some people may feel reluctant to make a compensation claim against their employers because of fears of victimization or workplace reprisals. But, you are protected against termination from employment, and if you are off work for any length of time, your employer does not have to pay you — so compensation awarded will help cover the loss of earnings.

Employers usually have employee liability insurance coverage to protect their business and to cover the cost of compensation, if a fall at work compensation claim is made against them.

Falls at work are common, so no matter where you work you should be vigilant of risks; not only risks of harm to yourself but also of harm to others. Report hazards to your employer or health & safety officer. If you are unfortunate and have been injured in a fall, don’t delay, please call us now at +353 1 264 5555 or complete our Online Enquiry and we’ll be delighted to help you.

HSC Data Breach

HSC Data Breach

HSE Data Breach: HSE to notify over 100,000 people after 18 months that they have been targets of a Cyber AttackSome 18 months after the HSE data was breache, HSE has only recently started to contact the 100,000 people who were targets of the cyber attack and had their data stolen.

What is the effect of HSE data breach?

Since dealing with data breach claims, we have seen first-hand the effects of lost or stolen data. It often takes several months for the full impact of a data breach to become apparent. However, nearly 18 months since the HSE data was breached, the affected parties who may suffer financial losses and emotional damage is only now being communicated too.

It is possible that the HSE has known for a long time that an individual’s personal data was compromised by Russian hackers, but they are giving themselves until April 2023 to notify the individuals. In order to prevent future unauthorised use of individuals’ personal information, the HSE is taking every

step necessary to minimise the impact of this HSE data breach. It certainly stretches the common understanding of the word “undue delay”.

During the launch of European Cyber Security Month, Justice Minister and junior minister with special responsibility for eGovernment Ossian Smyth raised the issue about HSE data breach. One of the personnel responsible for damage control of HSE data breach was addressed at the National Cyber Security Centre. On May 20th, 2021, HSE obtained a High Court order for restraining any processing, selling or sharing of stolen data, and the order still remains in place to date.

HSE Response: “Our cyber security experts are continuing to monitor the internet and the dark web for illegally accessed information. They are looking for any signs of it being published or used and we will act immediately if they see any evidence of this.”

According to national media over 94,000 patients and HSE service users and 18,200 members of the staff will be contacted to communicate about the data breach to the affected parties. Taking into account the case of health services of Mercy Hospital in Cork who informed people of bare facts that their data was leaked onto the dark web in a matter of weeks after the cyber attack, that brings up the question of what is taking HSE so long?

According to Irish Times on HSE data breach, the child and family agency TUSLA, also previously indicated about their data being stolen, and if that so then the number of entities that are affected by this cyber attack could be even higher.

WHAT IS “GDPR”?

In today’s world HSE is obliged to ” communicate about personal data breach to the affected parties with undue delay” (Article 34 GDPR)

GDPR is a regulation in EU law for data protection and privacy in the European Union. The General Data Protection Regulation is an important component to protect and uphold the EU privacy law, data protection laws and human rights law.

In simpler terms, GDPR provides a legal framework for keeping your and everyone’s personal data private and safeguard it from being stolen or gathered without consent. GDPR requires companies to have robust processes, systems and firewalls for handling and storing personal information.

What do I do if I received a letter from HSE that my data was breached?

It is advisable to seek legal advice on your rights under the GDPR legislation, and to understand the implications this breach may have on you and your family. Our expert team of solicitors has successfully provided compensation for clients who suffered a data breach. Fill out the form below for a free consultation with no obligation.

What exactly is a data breach?

In 2017, it was officially announced data to be considered the world’s most valuable commodity, even surpassing oil. In today’s time it is considered to be the peak of social media and technology, where data breaches have become an increasingly discussed topic in the news, but what exactly does data breach mean?

In a data breach, sensitive, protected, or confidential data is copied, transmitted, viewed, stolen, sold, or used by an unauthorised party. There are several types of data breaches, such as sending your medical records to the wrong person, which results in stress and embarrassment, or criminals gaining access to your online information and using it for fraud, and causing you financial loss.

Your data has value, and after a breach, you may receive hundreds of junk and spam mail that can be frustrating and stressful.

How can I find out if I have suffered a data breach?

By law, any company that has suffered a data breach and is aware of the breach where your sensitive information/data has been compromised is required to write to you and inform you that they have breached your data. If the company is public then the ICO will report the breach on their website too.

What is the effect of a data breach?

Since dealing with data breach claims, we have seen first-hand the effects of lost or stolen data. It often takes several months for the full impact of a data breach to become apparent, with financial losses following three to six months after the data breach.

WHAT IS “GDPR”?

GDPR is a regulation in EU law for data protection and privacy in the European Union. The General Data Protection Regulation is an important component to protect and uphold the EU privacy law, data protection laws and human rights law.

In simpler terms, GDPR provides a legal framework for keeping yours and everyone’s personal data private and safeguard it from being stolen or gathered without consent. GDPR requires companies to have robust processes and systems with impenetrable firewalls for handling and storing personal information.

Types of data breach claims

Not sure if you have suffered a data breach? There are a range of data loss scenarios, for which you can claim compensation, including:

Inadvertent or deliberate loss, hacking or leaking of your data
Sale or leak to a third party without your permission
Misuse of your data not in line with what you agreed to when you shared your data
Leak of data due to a business company data leak
Stolen identity to create new documents e.g. credit cards

Have you suffered a breach in one of these areas?

9 KEY WARNINGS TO KNOW IF YOUR DATA HAS BEEN BREACHED!
Privacy and Data breaches occur nearly on a daily basis, and if you aren’t keeping up with the latest news in the tech world, you might be the next victim. Here are some key ways to identify the threat in order to protect your data from being stolen, breached or deleted.

  1. You get a ransomware E-mail/Message for an access requests from an unknown
  2. You get a fake antivirus message about your data security or pop-ups that says “require your immediate attention”
  3. You see random spam pop-ups asking for your social security numbers
  4. You have unwanted browser tools or plug-ins
  5. Your internet searches are redirected to a shady webpage
  6. Your friends/colleagues receive an invitation email from you that you have not sent
  7. Your get an unknown message to send account details to prevent it from being breached
  8. Antimalware, Task Manager or Registry Editor is disabled
  9. You observe unwanted software being installed on your device

HERE IS WHAT YOU MUST DO AGAINST CYBER CRIMINALS!

Stay up to date: The landscape of cyber threat is constantly growing, so it is very important that your organisation grows as well and take precautions in order to protect and safeguard personal data. And you must take measures as well by making sure your passwords are complex and change after a few months to prevent data theft. You must also have up-to-date antivirus to protect your personal data from being breached or used for other purposes.

Consider additional protection: You can install anti-virus software, firewall and anti-spyware to protect your personal data from being leaked. And if you believe you have fallen victim to a cyberattack, you may want to consider consulting to data protection and breach legal services to help you exercise your legal rights, that can get you the right compensation for your loss and best possible outcome. At Gibson and Associates, our experts are ready to evaluate your cyber vulnerabilities and provide you with appropriate legal advice and services to help you recover from your cyber attack by suggesting the best possible outcomes.

PREVENTION IS THE BEST COURSE OF ACTION!