Category: Uncategorized

Court upholds finding deceased driver’s estate liable for woman’s trauma

Lisa Sheehan awarded €87,000 over stress from witnessing ‘horror’ aftermath of crash

https://www.irishtimes.com/news/crime-and-law/courts/high-court/court-upholds-finding-deceased-driver-s-estate-liable-for-woman-s-trauma-1.4793908

The Court of Appeal (CoA) has upheld a decision in favour of a woman who suffered post-traumatic stress after she saw the partially decapitated body of a motorist who had just crashed head-on with a bus.

Lisa Sheehan (37), a married mother-of-two from Banteer in north Cork, was awarded €87,000 in 2020 by the High Court for the stress she suffered after she saw what the CoA described as “scenes of horror” following the crash on the evening of January 28th, 2017, near Mallow in Cork.

The driver whose car hit the Bus Éireann coach was John O’Connor (21) from Lismire, Newmarket in Cork. He was a trackwork rider and promising point-to-point jockey.

Ms Sheehan sued Mr O’Connor’s insurer FBD, which had a nominated representative for his estate as a defendant. She also sued Bus Éireann but proceedings against it were later discontinued.

The High Court heard that on the evening of the incident, Ms Sheehan was driving home from work in Cork city and was travelling in the same direction as Mr O’Connor, some short distance behind him.

She did not see the collision with the bus occur but her car was struck by flying debris from the impact which caused her to brake to a halt.

She went up to the badly damaged car which hit the bus and saw what initially appeared to be the partially decapitated body of a child but which was in fact the remains of Mr O’Connor who had been propelled into the rear by the force of the impact.

Flashbacks
She managed to call the emergency services on her mobile phone and then searched the surrounding area for other victims who might have been thrown from the car. After the emergency services arrived and she rendered what assistance she could, she went home.

As a result, she suffered nightmares and flashbacks, her condition placed great strain on her relationships and job and she continued to have counselling and medication, the High Court found.

It was argued in the High Court that her psychiatric injuries did not give rise to any cause of action recognised by Irish law and the defendant did not owe her a duty of care.

It was also argued she was merely a secondary victim of the accident and even if she could establish her psychiatric illness was reasonably foreseeable as a result of negligence, she cannot bring herself within a restricted category of such victims as defined by previous case law in the UK.

The High Court’s Mr Justice David Keane found that while the law on primary/secondary victims is far from settled in this jurisdiction, he was satisfied that, although nothing turned on that categorisation, Ms Sheehan was a primary victim as her car had been struck by debris from the crash.

She was in the area of risk of foreseeable physical injury and she was a participant in the accident, albeit one on the periphery of it, the judge found.

FBD appealed the ruling. It was not disputed in the appeal that as a result of the events, Ms Sheehan suffered psychiatric injury and the amount of damages awarded was not contested either.

At issue was whether she was owed a duty of care. The defendant argued the High Court fell into error in holding that it did.

Mr Justice Seamus Noonan, in the main judgment on behalf of the three-judge CoA, said he was satisfied the High Court correctly concluded Ms Sheehan was entitled to succeed through the application of well-established case law and legal principles and that a duty of care was owed to her by the deceased, and therefore his estate.

In a separate concurring judgment, Mr Justice Maurice Collins found Ms Sheehan was a primary/immediate victim of the negligent driving of the deceased and, as such, was entitled to recover damages against the estate.

He also said it was not necessary for the CoA to determine whether the issue, relating to being a primary or secondary victim, is part of Irish law.

Modern Morals: ‘My colleague is secretly working from Spain — should I report him to HR?’

Working remotely from a foreign jurisdiction leads to tax, insurance and employment law implications

https://www.independent.ie/opinion/comment/modern-morals-my-colleague-is-secretly-working-from-spain-should-i-report-him-to-hr-41311041.html

By Katie Byrne, February 04 2022

Question: My colleagues and I have been working from home for almost two years now. Our employer introduced a long-term remote work policy but they made it very clear that we must work from a location in Ireland. We can’t work from abroad.

One of my colleagues has been working from Spain, on and off in stints, since 2020. We work very closely together but in the early days he wouldn’t admit that he was abroad. I could see during Zoom calls that he had a suspiciously dark tan. Then, during a phone call one day, I could clearly hear his children jumping into a pool. I asked him straight out and he begged me not to tell anyone.

We’re currently in the middle of a very demanding project and he’s taking off to Spain once again. He refuses to answer emails I send him after 6pm when he’s there. He just clocks off. And to be perfectly honest, I don’t think it’s fair that he’s over there living the life of Riley while I’m working until 9pm or 10pm every night. I’m thinking of reporting him to HR. At the same time, I don’t want to start an all-out war. What should I do?

Answer: While working from home was a fairly nebulous concept at the start of the pandemic, companies have since given their employees clear guidelines on where they can, and can’t, work. Working remotely from a foreign jurisdiction leads to tax, insurance and employment law implications, which is why most Irish employers now insist on their employees working from an Irish location.

I shared your dilemma with employment solicitor Richard Grogan, who is currently dealing with a number of cases involving employees working for Irish companies from abroad. He says the situation can present “a nightmare” for both employers and employees, many of whom are unaware of the implications. “It can come as a nasty shock to an employer when they discover that an employee has been working from Spain for so long that they have now acquired Spanish employment rights,” he says.

“Similarly, it can come as a shock to employees when they find out that a massive part of their salary has to be paid towards the equivalent of USC.”

Richard thinks the issue should be reported to your HR department. However, in the same breath, he suggests that you raise the issue of your excessive overtime with them, too. “If a contract says work finishes at 6pm, then this person is entitled to finish at 6pm,” he notes. “And if the person who wrote the letter is working until 9pm or 10pm, then they should be talking to HR themselves.”

Strategic career consultant Rowan Manahan is of a similar opinion. “If the project is a ‘not business as usual’ piece, with a specific deadline, then the colleague being deliberately unavailable to answer queries past 6pm is selfish at best, possibly obstructive,” he says.

“However, if the overall company culture is long hours, routinely infringing on evenings and weekends, then perhaps your colleague is taking a healthy stand and you need to examine your working habits rather than being resentful of theirs.”

Before you take action, Rowan suggests that you “be really clear about what problem this colleague is creating”. He wonders if there is a way you can “nip this problem in the bud” and “save yourself a real battle later”.

“The most conspicuous issue here is not how you are feeling,” he notes, “but rather if the specific project, or the wider company interest, is being affected by your colleague’s behaviour.”

I also shared your dilemma with workplace coach and mediator William Corless of The Workplace Podcast, who suggests that you try to work out what exactly is triggering you about this situation. “Perhaps this is more a conversation about someone not carrying their weight and the question then is, how do you broach it? It could also be a question of values, whereby one person places a greater value on work, whereas the other places more value on family.”

WFH is a new dynamic which we’re all still trying to negotiate, he adds. “And sometimes we need to go back to the group to renegotiate our service level agreements.It may also be helpful to ask yourself if this is a true ethical dilemma, guided by a sense of justice and fairness, or a personal grudge, triggered by malicious envy.

The following questions might help you better understand your motivations:

1) Would you report your colleague if your current workload was relatively undemanding?

2) If you were considering quitting your job in the near future, would you be just as inclined to report your colleague?

And 3) Would you report your colleague if he was working from a cramped apartment in Oslo (where the weather is currently below zero)?

On that note, I might add that not all ‘stealth expats’ are chasing the sunshine. Some of them had to get away from cramped living conditions and relationship conflict. Others needed to be closer to their family support systems.

This isn’t to say that your frustrations aren’t valid. You’re overwhelmed with work and you possibly have visions of your colleague wearing a Hawaiian shirt at his desk and drinking pina coladas during his lunch break.

But perhaps you could try thinking of him as another human being who is coping as best he can with the emotional fallout of the pandemic, rather than a sun-kissed slacker who’s cheating the system.

Man who mistakenly assumed he was crossing a one-way road before colliding with car loses €60,000 claim

https://www.independent.ie/irish-news/courts/man-who-mistakenly-assumed-he-was-crossing-a-one-way-road-before-colliding-with-car-loses-60000-claim-41321536.html

By Ray Managh, February 07 2022

A MAN who mistakenly assumed he was crossing a one-way road and failed to look to his left has lost a €60,000 damages claim against a motorist he collided with on a “dirty, wet January morning in 2018”.

Judge James McCourt, dismissing the claim of 43-year-old construction worker Darren Dunne, said the most compelling piece of evidence against him was that he had thought it was a one-way system.

Dunne, of Woodleigh Avenue, Blessington, Co Wicklow, sued motorist Sinead Holt of Annaville Grove, Dundrum, Dublin 14, alleging she had been negligent when approaching pedestrian crossing lights at a Luas stop at Blackthorn Avenue, Sandyford, Dublin 18.

Barrister Adrianne Fields appeared with Collins Crowley Solicitors for Ms Holt. She told Mr Dunne in cross-examination that medical reports of his treatment recorded that he stated he had been running across the road through traffic.

Mr Dunne said he did not recall saying this but agreed that if he had seen a child doing what he had done he would have called out a warning to him.

He said he had injured his left knee and right elbow in the collision and it was two years after the incident before it was revealed in new x-rays that his knee had been fractured. He said his knee had caused him the most difficulty.

Ms Holt told the court that she saw Mr Dunne out of the corner of her eye and subsequently braked. However, he struck the side of her car and immediately afterwards she saw him hopping around on one leg in the middle of the road.

Judge McCourt said the incident had occurred after seven o’clock on a dirty, wet January morning and he considered Mr Dunne a decent man who had honestly endeavoured in his evidence to recall what had happened.

Mr Dunne agreed the pedestrian lights were red against him but felt he could have succeeded in crossing the road before realising it was a two-way traffic system.

“There are a couple of stark facts in the evidence – the lights were red against him and he was not familiar with the area and thought it was a one-way system,” Judge McCourt said. “He ran into the side of Ms Holt’s car and sustained nasty injuries.”

Judge McCourt said he could not see what Ms Holt could have done. He acknowledged that the duty of care on motorists is high but it would be raising the bar too high to expect the driver in this instance, who had been driving with care and attention, to have avoided the collision.

Dismissing the case and awarding costs against him, Judge McCourt said Mr Dunne had made a mistake.