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Recent Insurance Cases Spring 2014

  • Ireland
  • General


Frank McHugh v Shelbourne O’Brien Limited Trading As the Stag’s Head

A Plaintiff settles his case against the Stag’s Head for €250,000.

An elderly Plaintiff initiated proceedings against the Defendant pub for personal injuries allegedly
sustained after he fell down the stairs in the pub. The Plaintiff suffered a severe brain injury and was in a coma following the incident. It was argued by the Plaintiff that the pub had failed to provide a safe means of access to the toilets and failed to provide warning signs of the dangers in the stairwell. It was counter-argued that the Plaintiff fell as a result of his own negligence. CCTV footage showed the Plaintiff taking his first step and tumbling down the stairs. Ms. Justice Irvine stated that the Plaintiff did not have sufficient evidence to prove his case. The Judge also commented that if the case was to go to trial, it was
likely that the Plaintiff would lose. The Plaintiff accepted the settlement offer, likely to be a fraction of what was deemed the full value of the claim.

Smart v Financial Services Ombudsman (“FSO”)

A recent decision of the High Court has re-affirmed the approach that the Court will take in adjudicating on appeals of decisions by the FSO.

In a recent Appeal of a decision by the FSO to the High Court, Mr. Justice Hedigan considered whether the FSO had reasonably come to his decision, based on the facts he had before him. The Appellant’s complaint to the FSO was essentially that her insurers, the EBS, had incorrectly cancelled her Serious Illness Cover (SIC) without her consent or knowledge. In the Appeal to the High Court, the FSO stated
that he considered the complaint by reference to written submissions only. This documentation included, inter alia, a Business Replacement Form which stated that her old policy was ‘Mortgage Protection and Serious Illness’, however her new policy was ‘Mortgage Protection’ only. In addition, in a Welcome Pack letter the Appellant was asked to consider the documentation to ensure cover was in line with her expectations. While the FSO did note that the particular document was not explained by the EBS to the Appellant, given the other written evidence he did not take this into account in making his decision.

Mr. Justice Hedigan dismissed the Appeal noting that in his view the FSO had before him, and had relied
upon, relevant evidence upon which he could rely in coming to the decision he did, thus satisfying the test.

McGorman v Lakeland Electrical & Others

The High Court dismissed a Plaintiff’s claim against his employer for personal injuries sustained after
falling from a ladder.

The Plaintiff, an apprentice electrician, fell from a ladder during the course of his employment and ustained a serious injury to his wrist which required surgery and rehabilitation. The incident occurred as the Plaintiff was untying the top of the ladder, while still standing on the ladder. He did not seek assistance from any of his colleagues. The Plaintiff alleged that his employer was liable for the incident as he had provided no formal training regarding working at height on a ladder. The Plaintiff also alleged that a caged platform should have been used for safety purposes.

The Court accepted the evidence of the employer that ‘on the job’ training as to how to safely work with this type of ladder had been provided on an ‘informal’ basis. The Court accepted that the use of the adder was appropriate and that the use of a caged platform would in fact not have been appropriate as it would have obstructed work on the site. It was also accepted, on the balance of probabilities, that training provided with FAS would have covered working with ladders at a height. The employer also provided evidence that the Plaintiff had not been asked to tidy up and untie the ladder.

Ms. Justice Irvine was of the view that the Plaintiff ought to have been aware of the safety procedures of taking down the ladder and that he operated dangerously in attempting to take the ladder down without a second party. It was ruled that the Plaintiff had been the “author of his own misfortune”. The Court therefore found that there was no liability on the part of either the employer or the owner of the site and that there was no negligence or breach of duty.

The Plaintiff’s claim was dismissed.


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