€105,000 Workplace Accident Compensation Award for Former Supermarket Worker Following Cold Room Injury

€105,000 Workplace Accident Compensation Award for Former Supermarket Worker Following Cold Room Injury

The Court of Appeal (CoA) has upheld a €105,000 workplace accident award for a former part-time supermarket employee who suffered an injury when she fell while driving a pallet truck holding stock.

Pamela Phoenix, a 37-year-old female now living in Canada, and formerly of McDonnell Drive, Athy, Co Kildare, took the legal accident against Dunnes Stores in relation to the accident that occurred on September 18, 2006. Ms Phoenix was attempting to move the pallet truck backwards in a cold room when she slipped and fell heavily on her bottom and back.

Ms Phoenix was awarded her €105,929 workplace accident compensation in the High Court in 2016 after that court accepted that she suffered chronic back pain and depressive symptomatology due to the accident. By October 2007 she had gained a considerable amount of weight. The judge stated that he felt she was a credible witness who did not exaggerate the extent of her injuries.

The workplace compensation award was appealed by Dunnes. They argued that the cold room accident compensation award was excessive and disproportionate.

Mr Justice Gerard Hogan, speaking on behalf of the three-judge Court of Appeal, upheld the workplace compensation award saying while it was probably in the upper range of what is appropriate, given the role of an appeallate court in other case law, the Court of Appeal cannot take any action.

Following the accident Ms Phoenix was rushed by ambulance to St Lukes’ hospital in Kilkenny. Her X-rays came back clear and she was discharged with some pain-killing medication. In the days following the accident she had to use crutches to get around.

She had difficulty re-assuming the same workload that she had managed before the accident and changed jobs to a role with Elverys. In 2007, still suffering from a considerable amount of back pain, she lost that role. She also has difficulty in continuing her studies at Maynooth University and became very psychologically vulnerable, eventually suffering from depressions when she became pregnant and suffered a miscarriage in 2008. She eventually moved to Canada in 2013 where she married and had a baby boy in 2016.

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Girl (11) Damaged at Birth Awarded €10m Compensation Payout

The High Court has approved a €10m compensation settlement for an 11-year-old girl with cerebral palsy due to the circumstances of her birth at Mayo General Hospital.

This overall payment means that €12.2m is not the total amount paid to Rachel Gallagher of Straide, Foxford, Co Mayo.

Her legal representative Denis McCullough advised the court that Rachel’s parents felt strongly that they would like to complete the process with a final lump sum compensation payment. This is, he told the Hight Court, the Rachel and her family  found the ongoing process – including medical examinations and assessments before court appearances – extremely difficult.

Approving the birth injury compensation settlement against the HSE, President of the High Court Mr Justice Peter Kelly stated that this would have been Rachel’s third time in court. Prior to each Court appearance, she had to go through “a battery of tests and assessments” and this created a lot of trauma for Rachel and her family.

The judge said it was a good bith injury compensation settlement that would provide for Rachel for life. Ciara Hynes, Rachel’s mother, the HSE on her behalf in relation to the events around her birth on September 28, 2006.

Ms Hynes was taken to Mayo General on September 27 and the following morning they began to induce the birth and syntocinon was started after midday.

Rachel was delivered in poor condition. It was alleged there was a failure to adequately manage and monitor the labour, delivery and birth of the baby. The court heard negligence was accepted in the case. Senior Counsel Denis McCullough advised the court that Rachel required one-to-one care because she is in danger of falling.

Counsel told the court that she (Rachel) is currently in fifth class at school and it is hoped she will go on to attend both secondary school and university.

When the Judge announced the approval, Rachel put up her hand to be allowed to thank the judge, Mr Justice Kelly.

Mr Justice Kelly remarked said very few judges are thanked and he was very grateful to Rachel. He commented that it was a good settlement, which will provide Rachel with the care she will require for the remainder of her life.

 

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Cerebral Palsy Against the HSE Settled for €1.9m

A 20-year-old woman, who suffers from cerebral palsy, has won a €1.9m interim from the HSE after the way her birth was managed.

Shauni Breen, who was born at Wexford General Hospital just 40 minutes after her healthy twin sister, suffers from cerebral palsy, spastic diplegia and is restricted to a wheelchair. The High Court was told, by Ms Breen’s Legal Representative, that the medical team present at the time did not recognise that it was a high-risk labour.

Ms Breen, who now lives in Glanmire, Co Cork, Ms Breen began the birth compensation case against the HSE due to the events at the time of her delivery on December 30, 1997. Their mother Marie Foley was taken to Wexford General Hospital at 5am on the morning in question.  Following her healthy twin sister Nicole’s  birth at 6.10am the delivery of Shauni lasted for around 40 minutes and was, allegedly, handled in a negligent manner. There was no anesthetist present or adequate supporting team present to deal with every possible eventuality.

The HSE denied these claims in the High Court and argued that management of the birth complied with standard best practice and was consistent with normal procedures in Irish maternity units at the time of the birth in 1997.

Ms Breen’s team of legal representatives claimed that Shauni was showing an  abnormal presentation prior to delivery and should have been delivered by caesarean section within 15 minutes of Nicole’s birth. However, due to issues in the delivery of Ms Breen, she had to be resuscitated and was taken to another hospital.

High Court Judge Kevin Cross approved the €1.9m cerebral palsy birth injury compensation settlement. Ms Breen will come back to court in five years’ time when her future care needs will be assessed in relation to further required costs.

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Boy (8) Awarded Birth Accident Injury Compensation Award of €65,000

The High Court has approved a birth injury compensation settlement of €65,000 for a boy, now aged eight years old. Dara Brennan allegedly experienced a facial injury during his delivery at the Coombe Hospital on November 12, 2009.

It is thought that Dara, Brayton Park, Kilcock, Co Kildare, suffered the injury to his face as a result of an attempted forceps delivery at the hospital.

To this day resultant scarring and two indentations on the right side of his face remain visible when he smiles.

Lorraine Brennan, acting on behalf of her son, took the compensation action against the Coombe Women and Infants University Hospital due to the alleged negligence Dara encountered during his birth.

Legal Counsel alleged that the incorrect use of forceps during the delivery inflicted the scars to right side of Dara Brennan’s face. Legal representatives for the boy claimed that there was an absence of the required level of care, competence, judgment and skill appropriate during the delivery of the boy.

It was argued that a more senior or experienced doctor in obstetrics should have attended the birth of Dara Brennan. Counsel for the Coombe Hospital denied these claims.

The High Court was advised by Dara’s legal team that liability was fully contested in the case. In addition, medical experts could not agree on the specific circumstances of the delivery.

Mr Justice Kevin Cross remarked, while approving the birth scarring compensation settlement said that it was as close to complete  compensation as possible for Dara Brennan.

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Medical Negligence Compensation Settlement in Malak Thawley Legal Action

An undisclosed compensation settlement has been agreed in relation to the medical negligence involved in the death of a woman, Malak Thawley, during surgery for an ectopic pregnancy in 2016.

Her husband, Alan Thawley settled his High Court action for medical negligence compensation.

Mrs Thawley, , a teacher and a US citizen, was pregnant with her  first when she died during a surgical  procedure at the Holles Street hospital on May 8, 2016. She was 34 years old.

Mr Thawley told the court last week that the death of his partner was due to a “cascade of negligence”. His legal representative, Liam Reidy SC, said that the doctor who was responsible for the surgical procedure that resulted in Malak’s death was an inexperienced junior surgeon.

He went on to say that the negligent actions of the medics included taking the decision was taken to cool Mrs Thawley’s brain with ice and then finding that there was no ice in the hospital. Following this two doctors were sent to a close by pub to get ice.

Presiding judge, Mr Justice Anthony Barr was advised that he could strike out the case as it had been settled for compensatory damages only and aggravated or exemplary damages were not included. There were no further details of the medical negligence settlement were provided.

Alan Thawley, speaking to the press outside the Court, said that he was glad to have come to a settlement after a long and difficult process. He remarked: “There is no compensation that could replace the profound loss of my wife’s untimely and needless death”.

Mr Thawley added: “The proceedings were brought forth to expose the cascade of negligence demonstrated by the hospital”.

He will also assisting with the Department of Health’s Ministerial Inquiry to help to prevent other people suffering, as he has, going forward.

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EMA Hearing on Epilim Addressed by Irish Woman

A Co Meath mother of three sons, who have suffered major illness as a result of complication caused  by the Epilepsy treatment drug Epilim, has addressed at the European Medicines Agency review (EMA) into its use by pregnant women.

In September 2017), Karen Keely, a representative of the Foetal Anti-Convulsant Syndrome Forum impressed on the review hearing the ramifications that her sons have experienced due to her being prescribed the drug at the time she was pregnant with them. They will now face issue over the remainder of their lives, two of them can neverhope to live a ‘normal’ life.

Ms Keely said: ““I have been mourning my children since the day they came into my life and I’m determined to not let this injustice happen to other families in the same way that it has happened to mine.”

Karen implored that a national register in Ireland of those who were on the medicine and people who are being prescribed it in the future must be set up. In addition to this Ms Keely asked for more research into the scale of the problem and accountability to be funded and supported. According to her the HSE had information available on the Internet but wider publicity about it’s available is necessary.

The EMA public hearing, which begun on 9 March 2017 at the request of the French medicines regulator, ANSM hosted citizens of six European Union member states describing their experience to the PRAC (Pharmacovigilance Risk Assessment Committee) members attending. it has been acknowledged that Epilim can cause physical deformities, brain damages and autism in children whose mothers are treated with it when they are pregnant.  At present being considered a major factor in 40 cases of birth defects and disabilities, made known to the Health Products Regulatory Authority (HPRA) in recent times.

The outcomes of the EMA review are predicted to lead to new recommendations regarding the use of Epilim in Ireland will be drawn up by the HPRA.

 

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Personal Injury Compensation Payout Details Must Be Made Public: PIC

The Personal Injuries Commission (PIC) has called for injury data held by insurance companies to be collated and published.

In its first report from the PIC recommended that data relating to the incidence of ‘whiplash’ and other soft tissue injuries should be made available to the public.

Mr Justice Nicholas Kearns chairs the Commission which was set up to address the rising cost of motor insurance premiums. Justice Kearns said that such data should be made available from insurers so that it can form part of the National Claims Information Database which is being developed by the Central Bank of Ireland at present.

The report finds that the figures being awarded for whiplash claims should correlate to the severity of the injury, with a standardised grading scheme set up to achieve this. It states there needs to be more transparency in relation to payouts for whiplash injuries as levels of general damages are not included in legislation. Award levels are determined ultimately by judicial decisions.

LEGAL FIRMS UNHAPPY WITH REPORT

Separately lawyers that deal with in personal injury compensation cases have hit out at  Personal Injuries Commission’s first recommendations to the Government.

Associate solicitor at Cantillons Solicitors Jody Cantillon, stated: “Firstly, the basis for the Personal Injuries Commission seems to us to be flawed in that the rise in insurance premiums has nothing at all to do with personal injuries litigation.

In relation to the report itself, Mr Cantillon remarked: “We are surprised at the Commission’s ‘recommendation’ that the sums awarded in whiplash claims should be linked to the severity of the condition. This is already the case, so there is nothing new there.

He added “We would have grave concerns about a standardised approach to the diagnosis, treatment and reporting of soft tissue injuries. No one person or injury is the same. The impact that a back injury might have on a new mother is different to the impact such an injury might have on a young man. A standardised approach would not take sufficient consideration of the individuals circumstances.

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Roscommon Woman awarded €5m over Misdiagnosis Negligence Compensation

Bernadette Surlis, (60), from Co Roscommon has had a settlement of €5 million approved in her action against the Health Service Executive (HSE) in relation to misdiagnosis negligence in her care and treatment at Sligo General Hospital during November 2013.

Mrs Surlis from Drinaum, Strokestown in Co Roscommon, is now confined to a wheelchair and lives in a nursing home.

The settlement means she should be able to realise her wish to return home, Mr Justice Kevin Cross was told.

Senior Counsel Mr Cush said it was accepted that had Ms Surlis been appropriately and promptly diagnosed and treated, she would not have suffered the injuries. He told the court that liability was admitted.

Ms Surlis, then aged 57, attended Sligo General Hospital on November 3, 2013, as she was suffering from headache, vomiting and dilated left eye pupil, but was triaged as category three and left waiting for three hours. ‘Triaged’ means she was not treated as an immediate emergency and was left waiting to be seen for three hours.

Physicians reviewed her for glaucoma and discharged her. However, she re-attended the next day when the seriousness of her condition was “appreciated for the first time”.

Ms Surlis was transferred to Dublin’s Beaumont Hospital on November 5 as she had suffered hemorrhage and severe and permanent injury. She requires full-time care and Mr Cush said the opinion of experts was that her condition will only marginally improve over the course of her life. She is knowledgeable regarding her condition and has  trouble communicating but can do so with the assistance of her family. Ms Surlis has three adult children and four sisters living close to her.

It is believed that if she had been transferred to Beaumont when she first attended the hospital, she could have been treated successfully and made a full recovery.

Mr Justice Kevin Cross said the misdiagnosis compensation settlement was a “reasonable and very good one” and that he hopes the money would provide the best compensation possible for Ms Surlis to live out her life in her own home.

 

 

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€15m Birth Injury Compensation for Boy (4) who was Deprived Oxygen at Birth

The High Court has approved a €15 million Birth Injury Compensation settlement for a boy, now aged 4, who was injured during his birth at the Coombe Hospital in Dublin.

The hospital apologised to Eoin McCallig from Dunkineely in Co Donegal, and his parents for his injuries and for the devastating consequences for the family.

Following an apology issued by the hospital to the boy, Eoin McCallig his father, Anthony, said the family could forgive a mistake. However, they could not forgive the way HSE treated their family and others in similar cases.

Mr McCallig said that there must be a “better way” of handling cases involving catastrophically injured children than via litigation lasting years to a “bitter end” and last-minute settlement offers. He advised the High Court President Mr Justice Peter Kelly that the culture and procedures need to change.

He claimed that the HSE has spent approximately €800m in the course of the last ten years in fighting these cases. Mr McCallig stated that this money could be put to better use.

He said the settlement of €15m birth injury compensation settlement would never change what happened to Eoin, but it would provide some solace as they knew that Eoin would now be looked after if anything happened to his parents.

The Coombe Hospital, the court was told, stopped monitoring Eoin’s heart rate at 9.30am on the morning of his birth.

Eoin’s parents claimed that if he had been monitored after this, medical staff would have seen he was in distress before he was born at around 11.30am. The court heard he had been deprived of oxygen in the 20 minutes just before he was born.

It was claimed that if Eoin had been monitored and delivered early, he would not have suffered such injuries. The court was told Eoin was a very clever boy, but he cannot walk or talk and can communicate only with his eyes and expressions.

In a statement released through their solicitor, Michael Boylan, Eoin McCallig’s parent said the birth injury settlement was welcome but the family “would hand this €15 million settlement back in a heartbeat if Eoin could get back what was robbed from him in those two precious hours before his birth”.

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€7.5m Compensation Award After Brain Injury Suffered Before Birth

A boy who was inflicted with a brain injury just before has born when his mother was thrown from a car as she was on her way to have a final pregnancy scan has settled his High Court Baby Injury Compensation action for €7.5m.

After the accident, Cian Hammel had to be delivered by emergency Caesarean section in hospital. The High Court was told that in the accident his mother, aged 17 at the time, was thrown from the seven-seater vehicle in which she was a back-seat passenger. The driver of the car did not have motor insurance.  The accident occurred on February 3, 2009 near Manhanagh, Screen, Co Wexford. The boy now has difficulty walking and is unsteady on his feet and also has difficulties with language.

Taking the Baby Injury Compensation action through his grandmother Ann, Cian Hammel of Ford Court, Kilmuckridge, Co Wexford sued the driver of the car, Simon Jordan, of Monaseed, High Fort, Gorey, Co Wexford.

The Motor Insurers Bureau of Ireland (MIBI), which handles compensation claims for victims of uninsured driving, was also sued as a result of the accident.

The car which was driven by Mr Jordan allegedly went out of control and flipped causing Cian’s mother Roisin Hammel, who was in a rear seat, to be flung from the vehicle. Senior Counsel Rosario Boyle told the court that Roisin, who was studying for her Leaving Cert, had accepted a lift to attend her final scan.

Additionally, it was alleged that Mr Jordan had overtaken another vehicle when it was not safe to do so and that he was driving at an excessive speed given the weather conditions. These claims were denied.

Ms Boyle said Ms Hammel was not wearing a seat belt at the time of the accident. However, the MIBI later acknowledged that, had she been wearing a seat belt, the consequences for Cian would not have been better.

She said Ms Hammel’s waters broke and, due to this, she had to have an emergency caesarean section in hospital due to foetal distress. Ms Hammel, counsel said, was told to prepare for the worst and when Cian was delivered. He had to be resuscitated and there was multi-organ failure.

Mr Justice Kevin Cross approved the baby injury compensation settlement and said he hoped it will provide for Cian’s needs for the future.

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