Thursday, March 23, 2017
“Yesterday, I didn’t have time to hydrate adequately. Let alone eat. When I came home, I was starving and stinking with sweat.”
I am working in a private hospital on a series of agency shifts, to establish whether or not I want to take up a full-time position.
It is a holiday period and I am watching how the system colludes with certain surgeons who want to boost earnings. Normally, the surgeons do an average of eight or nine procedures over the course of a week. Yesterday, one of them did 13 in one shift.
The director of nursing endorses this unofficial policy, which really infuriates me. Examine the job title. It’s not “director of surgeons”, “director of profit-making” or “director of making-sure-surgeons-get-to- spend-the-whole-holidays-with-their-kids- without-loss-of-earnings”.
He or she should be protecting nurses from exhaustion, from 15-hour shifts (overtime seems as difficult to secure in the private sector as in the public one) and from days where we are unable to get to the toilet (“protected breaks” seem as difficult to secure in private hospitals as they are in public ones).
Clearly, nursing in this institution operates as a trickledown economy. The fat cats want more; the little mice go hungry.
Yesterday, I didn’t have time to hydrate adequately. Let alone eat. When I came home, I was starving and stinking with sweat. My breath was foul from anxiety and fear, because I had had more than half-a-dozen post-op patients in my care, and was worried about their pain-relief, their dressings, their drains, their lives.
When I got home, I needed to be held. But I also needed a shower, and to wash my hair, scrub my teeth and gargle with mouthwash.
I considered the impact of “me’’ on my partner, and headed for the bathroom. I wish others would consider the impact of their decisions, their so-called choices.
Decisions and their impacts
But surgeons in private hospitals – for a moment just indulge the generalisation – are not the only ones stuck in roadrunner mode. We live on an island where, it seems to me, the impact of our decisions, the impact of self, goes largely unexamined.
If I pull out too soon and block traffic, it is clear I have done something I shouldn’t have. But what about decisions that are less clear-cut?
When we dump nappies in the green bin? When we say to social welfare we are a lone parent, but are actually cohabiting?
Clearly, nursing in this institution operates as a trickledown economy. The fat cats want more; the little mice go hungry.
When, as TDs, Ministers or Senators, we do not take the shortest route to work from our “official residence’’ in order to claim the maximum mileage?
When Government sidesteps its responsibilities, and hands over the decision-making to a dehumanised system which then fails to apply even a modicum of decency to the equation? Hello Health Service Executive.
When the care of our elderly is assigned to profit-seeking private enterprises? When the care of the homeless is left to charitable institutions? When Capuchin monks feed the new poor, the old poor and the poor we will always have with us?
I believe it is easier to act this way when we are disconnected from one another. I believe we can so easily disconnect when we are being trained (from an early age) to assess and value one another on status, income, address, car registration, clothes, accent, and, in hospital, on the level of insurance cover.
Since I started in this private hospital, I have been asked at least three times what cover my patients had. That is understandable from a management point of view. What rankles is that it was the first question and, on one occasion, the only question.
I feel disconnected. I don’t like a lot of my patients. This morning, a real loudmouth – in for a cruciate ligament operation – was being wheeled down to surgery when he started shouting about his expensive watch being left behind in the locker.
I told him I was not a hat check girl. That his watch was none of my concern. I didn’t give a fig about the comment card he might fill in afterwards.
Perhaps that is a good thing. My days of being a pushover seem to be numbered. But I wonder about when “no longer a pushover’’ tilts into selfishness.
I look around in this private hospital, with its glossy water features and fountains and Italian tiles. I see many decent people, many trying to serve the patient. (I also see many patients who have spent their life savings on their hospital stay. Paying for relief from pain and suffering.)
But I also see workers here who do the bare minimum, who have opted out of the public system, opted out of the chaos.
Maybe I’m jealous. I’d love to have the ability to walk away from my patients and take my lunch at my leisure, do the crossword. And chill out for a few years.
Ultimately, I don’t think the private sector is for me.
Perhaps if I learned a lot more self-care, I could remain in the public sector. For me, that would mean eight hours sleep a night. I’m not asking for time to do a Pilates class or to have a personal trainer. The reality of my life now is I am often too exhausted to play with my children, sometimes too knackered to make love.
Maybe I could cut down on hours. The financial hit would be a worry, but I could do an agency shift if things got really rough. We could find a way.
Maybe I could work in a hospital down the country and pay half the €1,400 we fork out for a tiny two-bed house.
I grew up on a farm, and I’d love a bit of space. I’d love a garden, a dog, a vegetable patch. But really, I’d love less worry.
I grew up dreaming of being a nurse. Of owning my own house. Dreams retreat. Reality intrudes.
The writer wishes to remain anonymous
Wednesday, March 22, 2017
Helping others is not only good for them and a good thing to do, it also makes us happier and healthier too.
Giving also connects us to others, creating stronger communities and helping to build a happier society for everyone.
And it's not all about money - we can also give our time, ideas and energy. So if you want to feel good, do good!
Experts have come up with a list of ten steps you can follow to boost your happiness, including being generous to others. The advice was produced by Vanessa King, author of 10 Keys To Happier Living and the campaign group Action For Happiness
Relationships are the most important overall contributor to happiness. People with strong and broad social relationships are happier, healthier and live longer.
Close relationships with family and friends provide love, meaning, support and increase our feelings of self worth.
Broader networks bring a sense of belonging. So taking action to strengthen our relationships and create new connections is essential for happiness.
Close relationships with family and friends provide love, meaning, support and increase our feelings of self worth
Our body and our mind are connected. Being active makes us happier as well as being good for our physical health.
It instantly improves our mood and can even lift us out of a depression. We don't all need to run marathons - there are simple things we can all do to be more active each day.
We can also boost our wellbeing by unplugging from technology, getting outside and making sure we get enough sleep!
Exercising is not only good for physical health, but mental health too. Unplugging yourself from technology can help boost the amount of time available for sport
Ever felt there must be more to life? Well good news, there is! And it's right here in front of us. We just need to stop and take notice.
Learning to be more mindful and aware can do wonders for our well-being in all areas of life - like our walk to work, the way we eat or our relationships.
It helps us get in tune with our feelings and stops us dwelling on the past or worrying about the future - so we get more out of the day-to-day.
Being mindful means noticing things around you rather than thinking only about the past and the future
5. TRYING OUT
Learning affects our well-being in lots of positive ways. It exposes us to new ideas and helps us stay curious and engaged.
It also gives us a sense of accomplishment and helps boost our self-confidence and resilience. There are many ways to learn new things - not just through formal qualifications.
We can share a skill with friends, join a club, learn to sing, play a new sport and so much more.
Taking part in hobbies provides a sense of accomplishment and helps boost our self-confidence and resilience
Feeling good about the future is important for our happiness. We all need goals to motivate us and these need to be challenging enough to excite us, but also achievable.
If we try to attempt the impossible this brings unnecessary stress.
Choosing ambitious but realistic goals gives our lives direction and brings a sense of accomplishment and satisfaction when we achieve them.
Having achievable aims in the future provides a sense of direction and provides satisfaction when we achieve them
All of us have times of stress, loss, failure or trauma in our lives. But how we respond to these has a big impact on our well-being.
We often cannot choose what happens to us, but we can choose our own attitude to what happens.
In practice it's not always easy, but one of the most exciting findings from recent research is that resilience, like many other life skills, can be learned.
How we respond to stress, loss, failure or trauma in our lives has a major impact on our wellbeing
Positive emotions - like joy, gratitude, contentment, inspiration, and pride - are not just great at the time.
Recent research shows that regularly experiencing them creates an 'upward spiral', helping to build our resources.
So although we need to be realistic about life's ups and downs, it helps to focus on the good aspects of any situation - the glass half full rather than the glass half empty.
It helps to focus on the good aspects of any situation - the glass half full rather than the glass half empty
No-one's perfect. But so often we compare our insides to other people's outsides. Dwelling on our flaws - what we're not rather than what we've got - makes it much harder to be happy.
Learning to accept ourselves, warts and all, and being kinder to ourselves when things go wrong, increases our enjoyment of life, our resilience and our well-being. It also helps us accept others as they are.
Learning to accept ourselves, warts and all, and being kinder to ourselves when things go wrong, increases our enjoyment of life
People who have meaning and purpose in their lives are happier, feel more in control and get more out of what they do.
They also experience less stress, anxiety and depression. But where do we find 'meaning and purpose'? It might be our religious faith, being a parent or doing a job that makes a difference.
The answers vary for each of us but they all involve being connected to something bigger than ourselves.
The ways in which we find meaning vary for each of us but they all involve being connected to something bigger than ourselves
The treatment of Ian Bailey by the State continues to raise the question of whether the Irish justice system is susceptible to political interference.
Ian Bailey: Facing Euro arrest warrant.
Yesterday, the State applied to the High Court for the endorsement of a European arrest warrant for Bailey. He is wanted in France to answer a charge of murdering Sophie Toscan du Plantier in West Cork on December 23, 1996.
A particular issue around the application is the timing, coming as it does a week before Bailey appeals a civil action he brought against the State.
The evidence on which the French charge is based is highly questionable.
For instance, in 2001 an assessment by the DPP’s office in this country came to the conclusion that there was precious little evidence to pursue a prosecution, and actually referred to Bailey as being “innocent” of the crime. The case was examined by the DPP again at least twice in the following years, with the same outcome.
Yet the French claim there is a case to prosecute. Their evidence relies on the Garda file and a visit to this country in 2011 by French detectives who were facilitated by the gardaí here.
Nobody, anywhere, has even hinted that the French have uncovered the smallest extra scintilla of evidence against Bailey.
The pursuit of this Englishman by the French authorities and the pressing of the murder charge would lead one to conclude, with some confidence, that if he does stand trial, the outcome is assured. Few envisage a scenario whereby he would be acquitted.
There is an issue over how the French have pursued this matter. Ms Toscan du Plantier’s family is well connected. Her murder was brutal and shocking. Understandably, her family is determined to get justice.
It might well be argued that had the outrage been perpetrated against a French citizen not so well connected, the same concentration of resources, and failure to acknowledge the conclusions of the Irish justice system, would have seen the matter abandoned long ago.
Here, the authorities have facilitated the French at every turn. (An earlier application to extradite him in 2011 was refused by the Supreme Court.) It’s as if the State’s attitude is, ‘Well, we couldn’t pin it on him, but we’ll let you lads take another shot at it.’
Along the way, Bailey sued the State for wrongful arrest. Following one of the longest civil actions ever heard, a jury dismissed his claim in March 2015. He has appealed that verdict, and that is where the latest controversy arises.
The High Court heard yesterday from Bailey’s lawyers that the State has had possession of the latest arrest warrant since last August, yet did not apply to have it endorsed until this week.
Coincidentally, Bailey’s appeal in his civil case is due to be heard next week. His lawyers are asking that reasons for the delay be furnished to the court.
Could it really be a coincidence that this issue, in relation to a criminal justice matter, is being pursued against an individual just at the time he is about to engage with the State on a matter of civil justice?
One might well believe in coincidences if it weren’t for the history of the State’s pursuit of Bailey. Leaks from the forthcoming Fennelly commission suggest the chairman will be the latest authority to criticise the investigation into Bailey.
Under the circumstances, it’s reasonable to ask whether the same tactics and pursuit would have been adopted by the State if Bailey had been a native person from, say, a political or business family, and not an Englishman of unsympathetic character.
Judge Tony Hunt has indicated he will most likely endorse the warrant. After that, Bailey faces once more into an extradition hearing to see whether the chase continues.
Shame has long been used to control women in Ireland so why won’t it work on Trump?
We can only marvel at the brilliance of social engineers who managed to protect their property, customs and traditions by using shame to control women who became pregnant in the ‘wrong’ cirumstances.
Shame. The word occurs with terrible frequency in all the stories about mother and baby homes. Justine McCarthy, in her magisterial Sunday Times column on her “wild, beautiful and wilful” older sister, who fled to England to have her baby son in 1974, writes that their mother – then only 39 and widowed with four small daughters – encouraged Berenice to go. More than that, she accompanied Berenice on that well-trodden Via Dolorosa across the Irish Sea and stayed with her while waiting to have the baby adopted.
“Our mother made these plans out of love for the four of us. She knew the shame awaiting us once tongues started wagging.”
But what would have been so bad about staying? Anyone curious about what an actual mob-shaming might have looked like back then, should source the 1993 Late Late Show segment featuring Annie Murphy, who was a fragile young woman in 1974 when she gave birth to Bishop Eamon Casey’s son. Murphy’s real offence was to confirm many years later that, a) her child had an actual father, an astounding revelation; b) the father had a name, and c) he had been negligent as a father.
In an audience planted with pious, nit-picking accusers, one was given free rein to accuse her flatly of lying about the father’s identity. Never mind that the bishop had already acknowledged his son and so, at minimum, a sexual relationship. To satisfy this narrative, the mother also had to be a bit of a slut and a liar. If this was the atmosphere only 23 years ago when the show was screened, imagine how it must have been 20 years before that, when Berenice’s baby was born?
Last weekend, one of the most read features in this paper was about another birth out of wedlock in 1974. A schoolteacher, then aged 24 with a job and a flat, wrote of giving up both, then driving herself to Bessborough House mother and baby home in Cork to “hide” – because “at that time this was by far the worst thing that could happen to a girl like me”.
Though as many as 10 babies were baptised there every week, no fathers appeared for this most fundamental of Catholic rites. Her own child’s father was no different. “Like many men at that time”, he gave her “little support” during the pregnancy.
Shame. We can only marvel now at the brilliance of those social engineers who managed to protect their property, customs and traditions, by using such a simple device to control their women.
If there are some who wonder why many irritating women now seem so bent on changing the tone of public discourse and much else about our bodily autonomy and wellbeing, the answer lies here. The year 1974 is not ancient history. The babies born that year are only 43 or so. What kind of fool would not be hyper-vigilant in such a society?
Still, there will be plenty of people who hold that shame is no bad thing and may be the solution to society’s ills. They are not wrong. Imagine if those brilliant social engineers could find a way to weaponise shame again? To get it right, however, you may have to begin by asking why such a powerful emotion, one that scorches to the heart of our identity, burdens some so much more grievously than others?
It is regularly noted, for example, that Donald Trump feels no shame, a fact that undoubtedly enabled him to claim multiple bankruptcies, kill small businesses, short-change workers, grab women’s genitals, shout his ignorance daily via Twitter, blame everyone else for his mistakes, and finally landed him the job of president of the United States. Look where shameless lying took the Brexit campaigners. Without shame, everything is possible. If there is no social sanction for liars, crooks and deceivers, what have we left?
In the 1990s, amid an eruption of fury in Britain about high chief-executive pay, Howard Davies, then boss of the Confederation of British Industry, startled everyone by agreeing that they were indeed overpaid. The solution, he suggested, was a combination of pay transparency and public embarrassment. In other words, shame would fix it. And indeed, when the changes came to pass, the fat cats were indeed ashamed – but by being shown, in public, to earn too little. And thus began the obscene “compensation” spiral for top cat status that continues.
Davies’s plan failed for an obvious reason. Shame has no effect on those who operate by a different set of rules. The really bad news is that the chief exemplar now occupies the White House.
It’s a challenge to be sure. Back in the good old days, the social engineers only had terrified women to deal with. Now let’s see them shape up to folks their own size.
Monday, March 20, 2017
While most injury cases are honest, when someone claims fraudulently that their injuries are worse than they are.
IT’S the backlash that insurance companies and hard-pressed policy-holders have been demanding for more than 30 years.
Compensation payments are being cut, awards are being overturned and claims are being dismissed outright as the chancers and fraudsters finally get their comeuppance.
At last, those who look to milk an overly generous system by hyping up an injury to secure an easy cheque will think twice before practicing their limp and perfecting their sob story.
That’s certainly how it appears as the two-year-old Court of Appeal begins to make an impact and judges take a tougher line with claimants and the evidence they present.
But does this clampdown represent a real culture change or is it just a passing phase, and is it targetting the right people or is there a danger that scepticism will take the place of scrutiny and genuine claimants will be denied justice?
And will it make any difference to the ever-increasing insurance premiums that are crippling businesses, organisations and private citizens alike?
The clampdown is real, according to Liam Moloney, a Kildare-based solicitor who has specialised in personal injury cases for 20 years. “There has been a tightening up in the courts since the introduction of the Court of Appeal [in November 2014],” he says.
Prior to the creation of the dedicated Court of Appeal, if a defendant wanted to challenge an award or the scale of damages handed down in the High Court, they had to apply to the Supreme Court which had a four-year backlog of cases.
They had probably already spent four or more years waiting to get to the High Court in the first place so the option of appealing was understandably not at all appealing. Likewise, the delays in the High Court deterred appeals from the Circuit Court.
In its first full year of operation, the Court of Appeal got through 750 civil cases with an averaging waiting time of 10 months so it is making its presence felt.
“There have been a number of decisions from the Court of Appeal that have overturned awards dramatically, sometimes by 50%,” says Moloney. “What that has done is cause a significant reduction in awards for certain injuries in the High Court because judges now know what the Court of Appeal will do if the award they make is challenged.”
It’s not just the level of awards that has changed either. “The law of evidence in relation to personal injuries has been tightened up considerably,” he says.
“In contested liability cases fault has always been decided on the balance of probabilities — is it more likely that the defendant was at fault than wasn’t — so you just had to tip the balance over 50%.
“The law is still that you have to prove your case on the balance of probabilities but in my opinion the threshold isn’t as low as 51% any more.”
Moloney has no objection in principle to the tightening up of the process but he is concerned that some people may be unfairly squeezed.
“In relation to fraudulent and exaggerated claims, nobody wants that in their economy. It’s wrong and it should be stamped out but there is a fine line between what is fraudulent and what is someone’s legitimate right to pursue an action for compensation.
“Injuries can be quite subjective in nature. An injury to one person might be different to an injury to another person. A fit person can recover quickly enough but maybe somebody who isn’t as fit will be affected more.
“It’s also recognised that whiplash injuries take longer to recover in someone who has a pre-existing anxiety or depressive condition. So what might sound like exaggeration it might not be exaggeration at all.”
Ernest Cantillon says insurers are acting in their own interest.
Cork-based solicitor Ernest Cantillon, whose firm has secured the biggest personal injuries pay-outs in Irish legal history, has similar concerns.
“There are, in every walk of life, those that will abuse the system but I think caution is required,” he says.
“If, for example, we had a drunk driver — who caused injury to an innocent person — complain that he did not want to pay the amount a court determined he should pay because he felt the claim was exaggerated, we would give no heed.
“Yet we have the representatives of the drunk drivers — the insurance industry — saying we want to keep as much money in our pockets to pay dividends to our shareholders, and we think that you should get less so that object of profitability can be obtained.
“Profitability for insurance companies is fine, but is it fine on the backs of paraplegics? The difficulty is that this debate is being led by the representatives of the wrong-doers, be it insurance companies or the State, and they have a vested interest in suggesting that claims are too high or exaggerated. There is no cohesive body representing the victims.”
Cantillon deplores the use of the term ‘compo culture’ and the perception that successful claimants are “all sunning themselves in the Caribbean like modern day Lotto winners”.
The reality for many, he says, is that they live in chronic pain, eking out their compensation to pay for carers to get them up in the morning.
“We see court reports frequently of judges dismissing claims because they are either false or exaggerated but these are very much in the minority, although they attract the greater level of publicity.
“In fact, the media campaign orchestrated by the insurance industry is so good at highlighting exaggerated claims, that genuine claimants are discouraged from bringing claims for genuine injuries, as they feel that they may be tarred with the same brush.
“We have people who come in to us with broken limbs, who have been injured in traffic accidents, and who have said to us expressly we don’t want to claim damages for our injury, we just want a claim for our financial losses — damage to our car or loss of earnings — because we don’t want to get the reputation of being part of the compensation culture.”
He says he only wishes as much emphasis was placed on accident prevention as fighting compensation.
“We see local authorities disclosing what sums they have paid out each year in claims. This is spun as if it is an example of avarice of the local population in sponging off their local authorities. It is nothing of the sort — it is merely a representation of countless examples of carelessness by local authorities.
“We look at it all the time as if the victim has done something wrong. I really think that we need to re-calibrate our focus and see there are people who are causing catastrophic damage.
“It drives me crazy that I’m paying my taxes and rates for the purposes of paying money to people who have been unnecessarily injured but no-one seems to be held accountable for not fencing off a hole that’s been dug and carelessly left open at the weekend for someone to fall into. We say the claimant is bad for breaking a leg. Why don’t we say, who left the hole unguarded?”
And don’t get him started on the backlash against whiplash. “Whiplashes are much maligned,” he says.
“I’m sure there are exaggerated whiplashes. But there are people who’ve had whiplash who will come in to you as if they’ve got a poker stuck up inside them. They are so stiff that they can’t move one way or another and you ask them what they think of it and they’ll tell you in no uncertain terms that it’s a debilitating illness.
“It is open to abuse but we often see the other side of it where people say they’re grand and they’re not grand at all. They minimise it because they just want to get on with things. There are undoubtedly exaggerated cases but there are people who underplay it as well.”
It’s true you don’t hear much about those who play down their suffering, probably because they’re drowned out by a constant refrain from the insurance industry railing against those go the opposite route.
Insurance Ireland, the industry’s representative body, repeatedly cries that insurance fraud costs the industry more than €200m every year.
There are also costs in terms of court time, Garda resources and the waste of emergency services when accidents are staged or hammed up, which is harder to quantify.
Insurance Ireland set up Insurance Confidential, a hotline for the public to spill the beans on people they knew to be faking injury or loss, and, since its establishment in 2003, it claims to have led to 9,000 cases of suspected fraud being reported and investigated.
InsuranceLink, a group of insurers, state bodies and some major employers, also formed to share information about claims they have received in the hope of catching out serial claimants and fraudsters.
And yet the number of claims has continued to rise. In 2015, the most recent year for which the Courts Service has figures, there were 18,992 new personal injury suits filed in total in the District, Circuit and High Court — a 7% increase on 2014.
Just 1,142 were filed in the District Court, which can deal with claims for up to €15,000 while 10,631 were filed in the Circuit Court, where awards can reach €60,000, and 7,219 went to the High Court where there is no official ceiling on payouts.
The highest amount awarded in the High Court in 2015 was €13.5m, but the lowest was €2,500 so it doesn’t always pay to aim high.
About half the total number filed was resolved in the same year, automatically creating a danger of worsening backlogs.
As Liam Moloney pointed out, the Court of Appeal is beginning to speed things up and, potentially, help weed out cases that should never go to court in the first place.
The greater willingness of defendants to make ‘Section 26 applications’ in recent times is also having an effect.
Section 26 is part of the Civil Liability and Courts Act 2004 and provides powers to allow judges dismiss a claim where it is found that a plaintiff gave false or misleading evidence.
It was greeted with some caution when first enacted, partly because there is an onus to prove the plaintiff knew the evidence was false or misleading which, in the case of exaggeration as opposed to outright lie, can be too subjective to conclusively assess.
Also, a dismissal may not be ordered under Section 26 if to do so would result in an injustice to the plaintiff. So where a plaintiff was genuinely injured and the defendant was at fault, but the plaintiff misled the court as to the extent of their suffering and loss, it would be considered unjust to throw out their entire claim.
And just to get to the point of making an application means getting to court and being prepared for the consequences if a judge rejects it so the case has already cost a lot of time and money and insurers may find it cheaper to just settle a claim.
Nevertheless, it does seem to be invoked more often lately, particularly in conjunction with greater use of surveillance video and photograph evidence obtained by private investigators employed to catch out those who lie about the extent of injuries.
But there’s still a view that because compensation payments are generous in Ireland and legal fees are high, it’s worth putting in a claim in the likelihood that insurers will often want to settle rather than risk more costly litigation.
“In terms of Europe we are quite generous,” says Liam Moloney. “Awards in England are about 50%-60% of what they are here. For an injury where you’d get about €16,000-€17,000 here, you’d probably get €7,000-€8000 in England.”
He believes the Injuries Board may actually be part of the problem in terms of the number of personal injury claims made, and their still fairly tortuous route through the courts.
The board has been spending between €250,000 and €330,000 annually on advertising and information campaigns in recent years.
“Isn’t it ironic that the body established to reduce costs associated with personal injury claims is of itself seeking people to lodge claims?” he says.
“Remember, the Injuries Board does not test evidence — it only evaluates the injury,” he adds. The implication is that people whose claim might not stand up to court scrutiny may be enticed to make one through the board that they would not otherwise chance.
The Injuries Board is also achieving acceptance rates of 20%-30% for the awards it makes so after going through the process, which is mandatory for personal injury claims, the vast majority of plaintiffs and defendants still want to go to court.
Curious cases of flying coins, nightclub falls and the injured musician on the bongo drums
Personal injuries cases used to grab attention for the size of the awards paid out but recently they’ve been making headlines for the throw-out, not the pay-out.
One of the best known is from some time back, 2001, when Supermacs founder Pat McDonagh, fed up with the constant stream of spurious claims made against his chain of fast food restaurants, installed security cameras in the hand washing area of the toilets.
He famously captured footage of two men deliberately splashing water on the floor and one of them practicing sliding on it before lying down and pretending he’d fallen while his friend raised the alarm. The ‘injured party’ pretended to have been knocked out cold, was treated as a possible neck or spinal injury case and was taken by ambulance to hospital.
The footage has been much aired since it was presented in court where the subsequent claim for IR£30,000 in damages was speedily withdrawn after the plaintiffs heard their non-award-winning performance was to be replayed, and many business owners have followed Mr McDonagh’s example since.
The following are some more recent examples of cases dismissed by judges who were far from convinced that the claims made and circumstances described were genuine.
THE FLYING COIN
Even before the judge mentioned the goat, it was clear the only money Valerie Purcell was going to see out of her personal injury claim was the coin she said hit her in the leg after it was sent flying by a council lawnmower.
The 39-year-old Cork woman had sued Cork City Council for damages, claiming she was injured while sitting on a bench in her local park on a summer day in 2014 while grass-cutting was going on.
She said as it passed her by, the sit-on mower sent a one euro coin flying in her direction and that it hit her on the leg, leaving a circular imprint on her skin and resulting in a weakness that caused her to fall the next day, giving her back trouble for the next six months.
The judge was immediately sceptical, pondering aloud if the imprint had any cash value as in the fictional case of the cheque written on the back of a cow in order to frustrate the taxman.
By the time Judge Seán Ó Donnabháin asked if the council should perhaps employ a goat to graze public parks instead of risking using lawnmowers, it was no surprise he would declare the claim “fanciful” and move on to the next case.
UP IN SMOKE
Smoking is bad for you but lying about the effects of it can be even worse, as hotel guest Jason Platt discovered when he exaggerated injuries he said he received when he fell out of the hotel’s window while leaning out to have a cigarette after a day’s drinking.
Initially the High Court was inclined to accept that there was an inherent danger in the design of the window at the Old Bank House Hotel in Kinsale, although when the evidence of the plaintiff’s alcohol intake was presented, it was decided he was 40% responsible for the accident.
But when the extent of his injuries were challenged, his case fell apart completely. He had claimed his back was so severely damaged, there were days he could only move five feet from his bed to his sofa and couldn’t manage without crutches or a wheelchair at the best of times.
The hotel had surveillance footage of him not only managing fine without any supports but driving, grocery shopping, carrying heavy objects and moving about with ease. His €1.8m claim was dismissed in its entirety.
LOST IN TRANSLATION
Three men who claimed to have back injuries after a rental car tipped their vehicle near Dublin Port were accused of making it up as they went along when their stories stretched credibility at Dublin Circuit Court.
Two of the three, all of whom were Pakistani nationals, had near identical medical reports which they could not explain. Claiming they feared for their lives and vomited with fright on the roadside did not stack up with the Garda investigation which established the incident as a low-impact tip that left a minor scratch on one car.
Two other men had withdrawn matching claims before the hearing and the remaining plaintiffs could not agree on where they had been sitting in the vehicle.
Hearing the case, which was for damages totalling €180,000, Judge Raymond Groarke said he couldn’t believe a word the plaintiffs said and rejected some of the more outlandish aspects as a “charade” before dismissing the entire claim.
QUICK ON THE WITHDRAW
Taxi driver Stephen McAuley withdrew his claim for €60,000 damages after facts about his previous claim were revealed.
A taxi driver reconsidered his position and withdrew his claim for €60,000 damages after his hearing revealed facts about his previous claims, forgery and suspicious insurance arrangements.
Stephen McAuley had claimed for a soft tissue injury he said he sustained when the car he was travelling in was hit by another car at a roundabout.
But while the 39-year-old Dubliner disclosed two previous accidents he had claimed for, the opposing insurers had found “many” more. He also failed to disclose that when he claimed for the theft of a brand new car the previous year, the claim was dismissed because his policy was voided by the fact that he lied to his insurers by forging a no-claims bonus.
Strangely enough, his car subsequently turned up again. Even stranger, the driver who allegedly struck him at the roundabout had only taken out insurance two weeks earlier and cancelled the policy two weeks later.
Judge James O’Donohoe told McAuley’s legal team that the plot “was thickening and there could be serious consequences for their client.” After a brief adjournment to consider the judge’s remarks, McAuley decided not to test that hypothesis and withdrew the claim.
A musician who claimed he could not play gigs for a year after falling into a moat when he stepped outside a Martello tower to relieve himself in the dark was filmed soon after on bongo drums and a trampoline.
Philippe Clark from Kilmanagh, Co Kilkenny, claimed he injured his groin and shoulder in the fall while taking part in rehearsals at the private venue.
While conceding he had exited the door and turned left into the garden instead of right to the toilet as instructed, he said he had done so to admire the sea view but the area should have been better lit to enable him see the edge of the one-metre-deep dry moat.
Evidence was produced that he had been to the venue in daylight previously so would have seen the moat, and that he was active — on bongo drums and trampoline — shortly after the accident.
It was also claimed he initially took responsibility for the fall, explaining he had been “spinning around looking at the stars”. His claim was dismissed.
Ireneusz Larus, leaving the Four Courts after the Circuit Civil Court dismissed his claim for damages.
A lorry driver awarded €12,500 in a traffic accident claim against his wife had the money seized less than an hour later to pay legal fees when he lost a claim against another driver for another apparent accident.
Ireneusz Larus’s two cases came before different Circuit Court judges on the same morning, the first arising out of a claim that he was hurt as a passenger in his wife’s car when she hit a wall after swerving to avoid a cyclist.
He accepted a €12,500 settlement offer, but saw it frozen less than an hour later when his claim to have been injured when he had to swerve into a kerb to avoid a lorry that had encroached on his lane was dismissed.
The court heard he had sought to recover the cost of repairs to his car despite evidence that there was no damage to the vehicle and that not even the tyres were scuffed. There was also a discrepancy between his sworn statement to the court and accounts he gave to two doctors over whether or not he had received physiotherapy.
Judge Jacqueline Linnane threw out the case and got an undertaking from Mr Larus’s solicitor that when the cheque issued from the earlier case, it would not be passed on to the plaintiff.
FALL FROM GRACE
A nightclub reveller who climbed up on to a fellow clubber’s shoulders and then fell off when he stumbled, tried unsuccessfully to sue the venue for causing her injuries by allowing her human climbing frame to get drunk and unsteady on his feet and for failing to properly supervise the behaviour of clientele.
Tasha Fitzsimons took the Barcode nightclub in Clontarf, Dublin to the High Court for a cut she sustained to her forehead and a fracture to her left elbow in the fall from the man who was not a party to the proceedings.
The court considered her claim in detail, and conducted much analysis on the duty of care venue management have towards their customers, before deciding that, in this case, to find the nightclub negligent in not monitoring the actions of every patron at every moment would be one step too far.
NO BUMPER PAY-OUT
Two in-laws who sought damages for neck injuries they claimed they suffered when the car in which they were passengers rear-ended another car were sent packing after a doctor told the court said the ‘crash’ was like bumper cars coming into contact at a fairground.
Eileen Ward and Charlie Ward were suing Mr Ward’s wife’s insurers at Letterkenny Circuit Court when the doctor’s damning report emerged. The court also heard the student whose car had been rear-ended as he was stopped at traffic lights had suffered no injuries at all and only had to have repairs done to his tow bar, which cost him just €100 and for which he made no claim. The judge threw out the case.
NO ONE TO BLAME
A student who had to wear runners to her debs after injuring her ankle in a slip while playing hockey took her school to the High Court claiming the ground was slippy and poorly lit. The judge dismissed the case, saying: “Strange as it may seem, accidents can happen where ‘somebody else’ is not to blame.”
‘She strutted around in her six-inch heels not a bother on her’
The main insurance companies have private investigators working full-time for them.
IT SOUNDS too good to be true but the would-be insurance fraudster who instagrams or tweets a picture of themselves parasailing in Lanzarote while ‘crippled’ with a back injury is no urban myth.
“Facebook is brilliant,” says one Cork-based private investigator. “Some people just can’t resist showing off what a great time they’re having even if they’re supposed to be in such a bad way they can never leave the house.”
The private investigator, who asked not to be named, has one such case currently on his files. A woman claimed to be badly hurt at a tourist facility but she had a physically demanding hobby and just couldn’t stay away from it.
“I heard she was back with her club but it took me three months to get the proof. But eventually, sure enough, there was a big gala event and there she was doing a star turn at it. I filmed it but then she put it up on Facebook too.”
Photographs and video recorded live or copied from social media sites are now common tools used by insurers to defend claims and discredit claimants.
The main insurance companies have private investigators working full-time for them while those such as the Cork practitioner are often employed by policyholders who are unhappy that their insurer wants to settle a claim that they believe could be successfully defended.
“We have another case of a lady who said she hurt herself at a hotel. Staff saw her walking around fine afterwards but she put on a limp and made a complaint the next day and said she was leaving and booking into another hotel but this was all orchestrated.
“We checked the CCTV in the new hotel and she was strutting around in her six-inch heels not a bother on her. What’s interesting is that the insurer wanted to settle but the policy said the hotel had a say in whether a claim was settled up to a certain value so it’s worth reading the small print.”
Private investigations don’t even need to be particularly covert to gather evidence. “The Data Protection Act is a big thing now. People think, you can’t do this to me and you can’t do that but if they’re in a public place you can take photographs.
“If you’re investigating insurance claims and they’re meant to be crippled and they’re mountain biking or running around The Lough here in Cork, you’re quite entitled to take photographs of that.
“Most insurance companies will pay out up to about €30,000 without questioning because it would cost them more to defend it in the courts but if they used private investigators routinely, it would never get to court.
“I know you think, he would say that, wouldn’t he, but if you had a claim in and it wasn’t genuine and you had to watch your every move, you could be putting your life on hold until the claim is settled which could take, in the district court, up to two years, and if it’s the High Court it could take four years.
“If you’re prepared to take the chance with a false claim, put your life on hold for it and say I can’t go on holiday, I can’t go to the gym, I can’t do things with my kids, then maybe you think it’s worth it but it’s something you have to weigh up very carefully.”
What price can be put on pain?
Justice for the victims of unfortunate accidents has the difficulty of being subjective on a case-by-case basis.
YOU can’t put a price on a life, so the saying goes, but agreeing the cost of a life blighted by pain and suffering, even temporarily, is not much easier.
In personal injuries cases, claimants generally seek compensation in the form of both general damages and special damages, the former for the pain and suffering the injury caused and/or continues to cause them and the latter for the out of pocket expenses they have incurred and will incur, plus loss of earnings to date and/or into the future.
A bit of guesswork is involved in the latter because it’s hard to predict the future and how financially successful the plaintiff would have been in terms of career advancement if they weren’t held back by injury.
But the maths is much less emotive than when the calculators come out to tot up general damages.
A landmark appeal to the Supreme Court in 1984 illustrates the problem. A young man left paraplegic in an accident was awarded IR£800,000 in general damages by a jury clearly sympathetic to his plight.
On appeal, however, the Supreme Court reduced the award drastically to £150,000, ruling that general damages should not be punitive and should take into account the impact on wider society.
Chief Justice O’Higgins stated in his judgement: “Since money cannot possibly compensate [for quadriplegia], a jury may question whether it matters what sum is awarded.
“The answer must be that it does matter. It matters to the defendant or his indemnifiers, and would be a ground for legitimate complaint if the sum awarded were so high as to constitute a punishment... rather than... an attempt to compensate the injured.
“It also matters to contemporary society if, by reason of the amount decided upon and the example it sets for other determinations of damages by juries, the operation of public policy would be thereby endangered.”
The sum of IR£150,000 was widely viewed as a cap on general damages which future awards should not exceed. But fairly quickly, the cap was tossed away and awards for similar and lesser injuries rose and, in 1988, legislation was passed to remove juries from personal injury cases, leaving them in what was considered the more objective hands of judges alone.
Judges needed guidance, however — particularly when they tended to recoil from the notion of involving wider society in their decisions - and with the establishment of the Injuries Board in 2004, came a Book of Quantum, updated last year, which set out in detail the sums considered reasonable to compensate for any one of hundreds of different injuries to just about every part of the body.
While the book was meant primarily for use by the out-of-court Injuries Board assessors, it was presumed it would have a knock-on effect on awards in cases.
Litigation costs an issue for years
THE latest focus on the costs of personal injury claims is just that — the latest in a long line of crusades.
In 1962, then minister for justice, Charles Haughey, set up the Committee on Court Practice and Procedure to, among other things, “inquire into the operation of the courts and to consider whether the cost of litigation could be reduced”.
Fast forward to 1986 and an Oireachtas committee headed by then Fine Gael deputy, Ivan Yates, produced a report seeking urgent action on the problem, which he said was strangling small businesses. Its main recommendation was to provide an alternative to the courts for settling claims.
In 1996, Pat Rabbitte, then a Democratic Left junior minister, commissioned an independent report from consultants, Deloitte and Touche, which chronicled similar problems and made similar recommendations.
That led to another report, in 1997, jointly compiled by the unions, employers, and government departments. This concluded that an independent personal injuries tribunal should be set up.
By then, the term ‘compo culture’ was embedded in public and political debate and feelings were running high, as evidenced by the statement of then minister for defence, Michael Smith.
“We have to strongly attack the compensation culture, which is eating at the heart of our society and which has the potential to cause grievous harm to our economy,” he warned.
“To put it very simply. If compensation is to be paid out to somebody for every one of life’s little mishaps, the cost will eventually make the State economically uninhabitable.”
Smith was dealing with the army deafness claims — which would go on to cost the State €290m — so his alarm was understandable.
Arguably, it was also justifiable. In 1986, when Ivan Yates called for urgent action, lititgation costs were about 15% the cost of insurance claims. By 1996, when Pat Rabbitte was doing the same, the figure was 25%. By the time then minister for enterprise, Mary Harney, tried to reign in costs, they had risen to 42%.
Her department headed up the government’s Insurance Reform Programme, one aspect of which was the establishment, in 2004, of the Personal Injuries Assessment Board. The aim was to provide a court-free, lawyer-free procedure for claimants and defendants, and their insurers, to settle claims in a cheaper, faster way.
The very fact that, last year, the latest government set up a Working Group on the Cost of Insurance, shows it didn’t have quite the desired effect.
The working group published its first report in January, looking specifically at motor insurance, and called for the setting up of a Personal Injuries Commission to examine the whole area.
Mr Justice Nicholas Kearns has been appointed chair and is due to report back in the middle of 2018.