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Spring Newsletter

By Patrick Donaghy & Co, Friday, 1st March 2013 | 0 comments

Welcome to Patrick Donaghy & Co Solicitors e-newsletter. As valued Clients we would like to take this opportunity to thank you for your business throughout the years.

We are pleased to inform you that Patrick Donaghy & Co Solicitors will celebrate its 42nd Birthday this year and we would like to thank you for your instructions! The purpose of our newsletter is to keep you up to date with changes in the legal world that may have an impact on you or your business.


Pyrite...is your home affected?

Pyrite...is your home affected? This is a very live issue at the moment and is unlikely to go away until a satisfactory remedy is found. Pyrite oxidises (swells) and produces a sulphuric acid when it is combined with moisture and oxygen. This can become a serious problem when this occurs in a confined space such as a back fill under floor slabs. The moisture under the concrete floor slab rises upwards, lifting the sulphuric acid which comes into contact with the underside of the concrete floor slab. Internal and external doors will then start to catch on the floor and cracking becomes evident. It is important that the testing for the existence of pyrite is evaluated by specialist laboratories which test for pyrite from the sample submitted and not by visual inspection. A specialist engineer should therefore be employed to ensure that the sample is taken correctly. This will of course be costly but will assist you when you attempt to remedy the problem with an insurer / builder / quarry. We have successe in having peoples homes remedied which had been affected by Pyrite. These successful outcomes were achieved by having an experienced engineer who was prepared to provide strong evidence at the time of hearing. If you wish to arrange a consultation regarding a potential Pyrite claim please contact patrick@donaghys.ie


Personal Injury Accidents and the Injuries Board.

The Injuries Board may assess compensation in accidents where liability is accepted by another party or where that party fails to respond to the Board. They will decline to assess claims where there is medical negligence or where there is a dispute over responsibility. In such circumstances the Board will authorize that the claim be permitted to proceed through the Courts. That does not mean that the parties must proceed to a Court hearing – they are free to settle their dispute as they see fit. Claims involving infants (anyone under 18 years of age) must be approved by a Court.

Whether the Board accepts or declines a claim it is always highly advisable to get advice from a personal injuries lawyer. The role of solicitors in such circumstances is to apply their skill, experience and expertise in advising clients and ensuring the best possible outcome for their client’s claim. Injuries by their very nature have a different effect on each individual and, as the consequences differ, so too will the value of each persons claim. Consequently a claimant will require services of a Solicitor in any claim where liability is disputed, any claim involving medical negligence and any claim involving an infant.

However claimants should also consult a lawyer in cases assessed by the Board to establish whether the compensation assessed represents the full value of the claim. In our opinion this is vital. Our experience is that where the Board’s assessment is rejected higher settlements (or indeed higher Court assessments) are often achieved. Our advices are given with a history of specialized knowledge and vast experience in this area. We treat all cases with sensitivity and confidentiality. We ensure that all claims are professionally dealt with and secure the best possible outcome. If you wish to arrange a consultation please contact tom@donaghys.ie


Section 117

Great care must be taken when making a Will to make proper provision for all children. A number of cases have gone before the Courts where a child believes they have been unfairly treated in the Parent's Will. Under the Succession Act Section 117 provides that if the Court is of the opinion that a Parent has failed in their moral duty to make proper provision for a child then Court may then Order such provision be made as it thinks just. In doing so, the Court shall consider the Application from the point of view a prudent and just Parent taking into account the position of each of the children and any other circumstances it considers may be of assistance. Any Order made by the Court under this Section cannot affect the Legal Right of a surviving Spouse (one third of the Estate where there is a child or children).

Only children can make an Application under this section of the Succession Act, 1965. The provision is not about equality or fairness between children but rather the Applicant child must establish that there was a need for provision to be made for that particular child greater than that made by the Deceased either during his lifetime or under the terms of his Will. Otherwise the Parent has full testamentary freedom (subject to Legal Right shares). Accordingly, feeling aggrieved that someone else has benefited to a much greater extent is not sufficient. There are however many examples of cases where such an Application has succeeded and the criteria have been laid down in Case Law over the years. The Testator has a moral duty to act as a prudent and just Parent would do. They are expected to take cognisance of foreseeable contingencies that will arise after their death. They must take into consideration the position of all children.

Where there is a possibility of such an Application being made great care must also be taken in relation to the Statutory Time Limits. Action should be taken immediately and any child wishing to pursue such a course of action should contact their Solicitor immediately with a view, in the first instance, to entering a Caveat and also with a view to issuing Proceedings. The costs in the Proceedings are awarded at the discretion of the Court. It is possible therefore even though a child may not succeed in such an Application they may still be awarded their costs.

For further information or to arrange a consultation please contact donaghys@donaghys.ie


A new medical Injuries Assessment Board?

The proposal to create a medical injuries assessment board is modelled on the Personal Injuries Assessment Board which was set up in 2004 to handle personal injury claims. Reports suggest that either a medical injuries assessment board similar to the Injuries Board may be set up in the future or the task of assessing damages will be given to the Injuries Board. Assessing damages including for example future care costs / loss of earnings can be a complicated and time consuming part of medical negligence claims. In 2010 the working group on medical negligence and periodic payments was established by the President of the High Court. In its first report in October 2010 the group recommended a facility for periodic payment orders

. • The State Claims Agency.

In 2001 the government empowered the State Claims Agency to handle the defence of clinical claims against public and certain private hospitals. It remains to be seen whether a medical injuries assessment board will be established.


Medical Negligence

Medical negligence is a term used to cover a wide variety of problems arising out of clinical care. It may be treatment by a doctor, surgeon, nurse, but equally can apply to various other forms of medical treatment including: dentistry, opticians, midwifery, plastic surgery or ophthalmology. Every health professional owes a duty of care to their patients. Where an injury occurs due to sub-standard medical care, this duty has been breached. Some of the areas we have handled include:- Birth injury cases such as cerebral palsy and erbs palsy. Delay in diagnosis, Misdiagnosis, Failure to diagnose and treat medical emergencies. Vision loss / blindness cases, Autism, MRSA, Plastic surgery. Treatment, medication or prescription errors. TIME LIMITS It is important to note that the Statute of Limitations is two years for personal injuries claims and it is vital to take this time constraint into consideration if you wish to pursue a medical negligence case.

If you wish to obtain information or arrange a consultation regarding a potential medical negligence case, please do not hesitate to contact:- ruth@donaghys.ie


Reform of Bankruptcy Law

During 2011 various amendments to bankruptcy legislation were introduced. Amendments to the Bankruptcy Act 1988 included:-

• an automatic discharge after twelve years; • an ability to apply to court for a discharge from bankruptcy after five years;

• the relevant time periods for reviewing transactions has been extended as follows:- - fraudulent preferences – extended from six months to one year, - disposition of property at an under value extended from three months to one year.

• a creditor can also now present a petition against a debtor if the debtor has ordinarily resided or had a dwelling house or place of business in the State within three years before the date of presentation of the petition. This has been extended from one year.

• more reforms are expected in this area and the Personal Insolvency Bill which was recently published will once enacted give a vital lifeline to distressed mortgage holders and those overwhelmed by personal debts.

The key element of this proposed new legislation is that it will allow people to remain in their homes while getting on top of their financial affairs.

For further information please contact: Patrick Donaghy & Co Solicitors, 13/16 Dame Street Dublin 2 or visit our website http://www.donaghys.ieTel:01 6794165 Fax:01 6795431 donaghy@donaghys.ie

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