Michael J Horan News

If you have a fall in a public place and suffer injury you may be entitled to compensation for that injury. The litigation team in Michael J. Horan, Solicitors, have extensive experience in dealing with these types of actions. These actions include acting for persons who have had accidents due to the defective nature of a road or footpath, such as pedestrians who have tripped on an uneven footpath. We have the experience to properly advise you about a potential claim.

Who was at fault?

It must be established that another party is at fault. We will assess whether you can establish that your accident is the fault of another party.

We will take detailed instructions from you including identifying the area where you fell. Once the scene of the accident has been identified, we can visit it and/or we can engage an engineer to inspect the scene and prepare an expert report on your behalf. This report will outline any trip hazard and assess whether the area in question was defective.

We will take a detailed statement from you about what happened and talk to any witnesses.

We will notify the responsible party of your claim and deal with them or their insurance company on your behalf.

Advice throughout the Process

We will obtain a medical report from your treating doctor. We will also seek your medical records from any hospital that you attended. Once we have a medical report we then lodge an Application Form with the Injuries Board. We will advise you throughout the Injuries Board process to ensure that your claim is properly presented and advise you on any award that is made.

If your claim is not resolved by the Injuries Board we will then guide you through the next stage of Court Proceedings. Our experience will ensure that your claim is processed efficiently and accurately.

If you would like further advice on these types of claims, please contact Michael J. Horan Solicitor, on 071 9140774 or info@michaeljhoran.ie

*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.”

Unless you, the employee, can establish that your employer is at fault then you will not be entitled to compensation for an injury at work.

The three areas where an employer might usually be at fault are:
1. Unsafe Place of Work. An employer must provide a safe place of work for its employees.
2. Unsafe Employees. An employer must provide competent fellow employees.
3. Unsafe Equipment. An employer must provide proper tools, equipment and training to enable the employee do their work.

Apart from the above there is also comprehensive legislation imposing strict obligations on an employer. However you as the employee must also take care of your safety and if you do not, you may have your compensation reduced.

If you suffer an injury at work
1. Medical Attention. Make sure you get medical attention as soon possible for your injury.
2. Report the accident: It is vitally important to report the accident/incident to your employer. You may be asked to complete an accident report form and you should seek a copy.
3. Witnesses? You should keep a note of any witnesses to the accident. If you instruct us about your accident, we will speak to those witnesses and have an engineer attend your workplace to inspect the area with you.

If you would like further advice on these types of claims, please contact Michael J. Horan Solicitor, on 071 9140774 or info@michaeljhoran.ie

*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.”

The provisions regarding the recoverability of certain social welfare benefits took effect from 1st August 2014. These provide for the repayment to the Department of Social Protection by a compensator of payments made to a claimant as a result of the offending actions of a wrongdoer.
A compensator (usually an insurance company or the Injuries Board), must apply to the Department of Social Protection for a statement of recoverable benefits prior to making any compensation payment. An application form is available from the Department of Social Protection.
The statement of recoverable benefits will contain the total amount of recoverable benefits and is valid for 3 months from the date that it is issued. The compensator’s duty will be treated as discharged if he pays the amount stated in the statement.
Settlements / Multiple Defendants
There are situations where liability is apportioned or where a claim for loss of earnings is in dispute. If a loss of earnings claim is in dispute the Compensator will also dispute their liability to reimburse the Department of Social Protection for recoverable benefits. However unless there is a Court Order indicating that there was a split on liability or on the validity of a loss of earnings claim, the Department of Social Protection will expect full reimbursement of any benefit paid.
Where co-Defendants are liable for the compensation payment to the injured party, each Defendant is jointly and severally responsible for the payment, but the Department will accept each Defendant’s separate payment.
Practical Implications
These provisions will lead to increased insurance costs as the insurer is now responsible for reimbursing the Department in respect of social welfare payments made to claimants.
A reduction in the number of nuisance value settlements is likely where there are significant recoverable benefits as it will not make economic sense for insurers to settle these claims.
Similarly, where co-Defendants are jointly and severally liable for the compensation payment to the Department of Social Protection, there will be added difficulties where one of the Defendants is uninsured and does not have the funds to repay the Department of Social Protection. The insured Defendant will bear the full cost of the reimbursement of social welfare payments.
In addition each file will have to have a valid statement of recoverable benefits which will lead to additional work in processing claims.
For further information, please contact Michael J. Horan, Solicitor.
E: info@michaeljhoran.ie
T: +353 (0)71 9140774

Am I in the right?
Do not admit liability for the accident to anybody. Do not discuss liability with anybody until you have taken legal advice. If you have any doubts about who is at fault ring the Gardaí to come to the scene and investigate. In addition before the vehicles are moved you should take a photograph of the vehicles and damage using your mobile phone/digital camera. A number of factors need to be considered when determining who is at fault for a road traffic accident including – the rules of the road, speed, weather conditions, types of vehicles involved, road layout and where the accident occurred.

Reporting
Ensure that the accident is reported immediately to the Gardaí and your insurance company. Even if the Gardaí have not come to the scene it is important to report the incident to the local Garda Station.

Medical Treatment
You should attend your own doctor as soon as possible after the accident as it may be necessary to obtain a medical report from your doctor at a later stage.

Make a Note of What Happened
As soon as possible after the accident you should make a written note of what happened with as much detail as possible including the following.
1. Where the accident happened.
2. Date and time.
3. Weather conditions.
4. If there was a lot of other traffic on the road.
5. The road layout.
6. Position of the vehicles when the accident happened.
7. What lights/indicators were used.
8. Speed the vehicles were travelling.
9. What the drivers and witnesses said.
10. Were there skid marks on the roadway.
11. Where was the debris from the accident located on the road.

Financial Loss: Medical Fees and Loss of Earnings
Keep a record of any money you pay out or owe as a result of the accident such as doctor’s fees, medication receipts and physiotherapy fees. If you are out of work keep a record of the dates you are absent and the wages which you have not received due to your absence. Keep a record of any social welfare benefits you receive as a result of the accident. If you are claiming social welfare benefits ensure you inform the Social Welfare Office that you are out of work due to an accident.

If you would like further advice on road traffic accident claims, please contact Michael J. Horan Solicitor, on 071 9140774 or info@michaeljhoran.ie .

If you have suffered an injury due Medical Negligence, the litigation team at Michael J. Horan Solicitors will advise you on whether you have a Medical Negligence case.

The following are some of the areas of medical negligence that we advise upon:

• Cerebral Palsy
• Birth Injuries
• Obstetrics / Gynaecology
• Brain Injury
• Joint, Knee and Hip Replacement
• DePuy Hips
• Dental
• Plastic Surgery
• Medical and Dental Product Liability
• Pharmaceutical (Drugs)
• Hospital Acquired Infections
• Eyes/Ophthalmic Injuries
• Cosmetic Surgery
• Delayed Diagnosis Claims
• Surgical Claims

Medical Negligence is a very complex area of law which requires specialist expertise on the part of the legal advisor.

WHAT IS REQUIRED
Firstly it will be necessary to obtain all of your relevant medical records. These will have to be examined and discussed with you to ascertain what went wrong and whether or not such actions/events constitute Medical Negligence.

In order to prove that a doctor is negligent, it is necessary to establish that no reasonably competent practitioner in the relevant field, at the relevant time, with the same qualifications and expertise, faced with the same circumstances, would have acted in the same way.

It is also necessary to show that the medical negligence (if established) resulted in the injury/poor outcome which occurred. If this cannot be proven, there is no case in Medical Negligence.

TIME LIMITS IN MEDICAL NEGLIGENCE
The time limit within which a case can be taken is two years from the date of the accident/ injury. In the case persons under the age of 18 years the time limits are extended by the legislation. There is an allowance made for those who did not have knowledge of the wrongdoing (or alternatively that the person did not have knowledge that the wrongdoing caused the injury) and in those circumstances, the time may be extended.

For further advice please contact Michael J. Horan, Solicitor, at Tel: 071 9140774 or by email info@michaeljhoran.ie

1. Employment Contracts

The Terms of Employment (Information) Act 1994 provides that an employer must provide an employee with a statement in writing no later than two months after the commencement of employment containing the following particulars:

• The full names of both employer and employee.
• The address of the employer.
• The place of work.
• The title of the job and the nature of the work.
• The date of commencement of the contract of employment.
• In the case of temporary contracts, the expected duration or in the case of a fixed term contract the date on which the contract expires.
• The rate of method of calculation of the employee’s remuneration and details as to what intervals the payment of remuneration will be made.
• Any terms and conditions relating to the hours of work including overtime.
• Any terms and conditions relating to paid leave (other than paid sick leave).
• Any terms and conditions relating to sick leave or for payment due to incapacity as a result of injury.
• Details of pensions or pension schemes.
• The period of notice which the employee is required to give and entitled to receive whether by statute or contract.
• Reference must be made to any collective agreements which directly affect the terms and conditions of the employee’s employment.

An employer should ensure that an employee’s written statement is in compliance with the Act as this will avoid disputes into the future.

2. The Organisation of Working Time Act 1997

This Act provides for the following:
• A maximum average net weekly working time of 48 hours.
• A daily rest break of 11 consecutive hours.
• Rest breaks while at work.
• A weekly rest break of 24 consecutive hours.
• A maximum average of night working of 8 hours.
• Maximum hours for employees engaged in work involving special hazards or physical or mental strain

3. Holidays

All employees whether full time, part time, temporary or casual earn holiday entitlements from the time work is commenced. Employees are entitled to four working weeks in a leave year in which the employee works at least 1,365 hours. The Organisation of Working Time Act 1997 provides for nine public holidays. In respect of each public holiday an employee is entitled to either:
1. a paid day off on the holiday, or
2. a paid day of within a month, or
3. an extra days annual leave, or
4. an extra days pay.

4. Equality

The Employment Equality Acts prohibit discrimination on nine grounds – gender, marital status, family status, sexual orientation, religion, age, disability, race /colour/ nationality / ethnic or national origins and membership of the traveller community. The Act prohibits discrimination in employment and, in particular, access to employment, conditions of employment, training or experience for or in relation to employment, promotion or re grading or classification of posts.

5. Maternity / Parental / Force Majeure / Adoptive and Carer’s Leave

It is important that every employer familiarise themselves with the legislation in this area. Section 26 of the Maternity Protection Act, 1994 provides that an employee has a general right to return to work and also a general right to return to the position they held before maternity leave.

6. Dignity at Work/Bullying

Every employer must take measures to ensure that employees are not subject to verbal or physical bullying or harassment from their superiors, co-workers, customers and suppliers. All employers should have a proper policy drawn up to deal with bullying in the work place. Every employer should ensure that any complaints are dealt with seriously and sensitively. Every employer should take active steps to discharge their obligation and fulfil their duty of care in this area.

7. Unfair Dismissal

The Unfair Dismissal Acts are based on two principles:
• Substantial grounds must exist to justify the termination of a contract for employment.
• Fair procedures must be followed in effecting the termination.
All employees who have one year’s continuous service with the employer and who have not reached normal retirement age for employment are included under the Act. All employers should have a carefully constructed contract of employment together with a booklet setting out the appropriate procedure to take place whereby an employee is dismissed.

8. Redundancy

A dismissal is deemed not to be an unfair dismissal if it resulted wholly or mainly from the redundancy of an employee. Redundancy is an absolute defence to a claim for unfair dismissal, provided the employee has been fairly selected for redundancy. Strict adherence to the definition of the redundancy is required from employers if an employee is held to be dismissed by reason of redundancy.

If you are an employer or an employee and have any queries in relation to your obligations or rights please contact Michael J. Horan, Solicitor, at Tel: 071 9140774 or by email: info@michaeljhoran.ie

WHAT IS AN ENDURING POWER OF ATTORNEY?

An Enduring Power of Attorney is a document whereby you give authority to another person to make decisions on your behalf in the event of you being unable to make decisions due to mental incapacity. Without an Enduring Power of Attorney, if you become mentally incapacitated your assets in your sole name will be frozen and cannot be used by anyone to pay bills on your behalf or to cover the cost of your care. In this situation an application would need to be made to make you a Ward of Court.

An Enduring Power of Attorney provides for another person to make decisions on your behalf when you are not in a position to do so. You get to choose who the individual will be. This is very important when it comes to managing your assets and making decisions about your care.

The Enduring Power of Attorney has no effect until such time as you are not mentally capable of managing your own affairs. A mental capacity certificate from the doctor is required to prove that you are incapable of managing your affairs.

As part of the execution of an Enduring Power of Attorney your solicitor must sign a certificate stating that they are satisfied that you understood the effect of creating an Enduring Power of Attorney. Before executing an Enduring power of Attorney you should discuss the implications with your solicitor. The Enduring Power of Attorney document itself contains a detailed explanatory guide which can be very helpful.

WHO MAY ACT AS YOUR ATTORNEY?

The person you give authority to is known as your attorney. Your attorney will only have power to manage your affairs when you become mentally incapacitated. There are no restrictions on who can act as your attorney. You should, however, chose an individual who is trustworthy and who will be in a position to manage your affairs in the event of your incapacity.

It is good idea to also appoint more than one attorney. Where you appoint more than one Attorney, you can decide whether they can act:

• Jointly (which is together) which acts as another safe guard; or
• Jointly and severally (which is together or independently). This option may be the best and is particularly useful where you have one attorney that lives abroad.

If you wish for your attorneys to act jointly at all times, then you should be aware that where two people are appointed to act jointly, then, in the case of the death, incapacity of any one of the attorneys, the remaining attorney may continue to act solely, unless the Enduring Power of Attorney provides otherwise. Therefore, if you should wish at all times to have two attorneys then you should appoint a substitute alternative attorney as well.

WHAT POWERS DO THE APPOINTED ATTORNEYS HAVE?

An Enduring Power of Attorney can give general or limited authority to your attorney. If you want to limit the powers of the attorney it is extremely important that the Enduring Power of Attorney document reflects this. The powers you give your attorney(s) are important and please do not hesitate to contact us with any queries you may have.

The Enduring Power of Attorney can cover the following areas:

1. Personal care decisions: gives the power to your attorney to make decisions such as where you should live, what treatment you should get, and so on.

2. Decisions in relation to all your property: if a general power is given this can include making decisions such as the power to sell your property, sell off shares, and other assets. You can limit this power.

WHAT IS INCLUDED IN AN ENDURING POWER OF ATTORNEY?

1. A statement by your doctor verifying that in his/her opinion you have the mental capacity at the time that the Enduring Power of Attorney was executed.
2. A statement from you that you understood the effect of creating the Enduring Power of Attorney.
3. A statement from your solicitor that he/she is satisfied that you understood the effect of creating the Enduring Power of Attorney.
4. Certain people must be notified of the making of an Enduring Power of Attorney, including family members.

The Enduring Power of Attorney ceases to have effect on your death. The attorneys will not have the power to deal with your assets at this point. On your death, your assets will then dealt with by your Executor appointed under your Will or if you have no will according to the rules on intestacy. It is common for people to execute an enduring power of attorney at the same time that they complete their wills.

WARD OF COURT

If a person becomes mentally incapacitated without a valid Enduring Power of Attorney, an application can be made to the High Court to have that person made a Ward of Court. A person becomes a Ward of Court if the Court decides that they are not capable of managing their own affairs. When this happens, a Committee is appointed to make decisions in relation the person’s affairs.

If you would like to discuss the implications of creating an Enduring Power of Attorney, please contact Michael J. Horan, Solicitor, at 071 9140774 or info@michaeljhoran.ie

1. A will gives you control.
2. A will gives you options.
3. A will gives certainty that your spouse, partner or relative etc. inherits what you intend.
4. A will can safeguard the interests of your children under 18 years of age.
5. The consequences of dying without having made a will can prove complicated and expensive for your family and friends.
6. A will can reduce inheritance tax.
7. You can decide who will deal with your estate in the event of your passing.
8. You can give other people opportunities by passing your possessions to benefit others.
9. A will can be reviewed if your circumstances change.
10. A will gives you peace of mind.

The firm of Michael J. Horan is participating in “Best Will in the World Week” which is taking place from Monday 20th – Friday 24th October 2014.

If you are considering making a will please contact our Michael J. Horan, Solicitor, for expert advice. Michael is a member of The Society of Trust and Estate Practitioners (www.step.org).

Telephone: +353 (0)71 9140774
Email: info@michaeljhoran.ie