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5 Tips to Avoid Winter-Weather Related Injury




Avoid Winter-Weather Related Injury

Did you know that in winter Ireland gets a little over 7 hours of daylight each day? With long dark hours and lower temperatures, accidents related to winter weather increase dramatically. Here are five quick things you can do now to avoid injury.

1. Get a grip
As temperatures plunge, any wet ground like footpaths and streets are a potential hazard as they could quickly ice over. Proper treading protects against slips and falls by increasing the friction between the tread and the ground.

Whether wheels or footwear, makes sure they are in good condition. Automotive tyres treads should be least 1.6mm. If cycling, opt for wider, thicker tyres that offer more protection from punctures. Check and the tyre pressure and inflate as necessary as the cold temperatures causes the pressure to decrease.

Look for footwear with non-smooth rubber soles. Don’t be afraid to wear one pair to work and then change at your destination. Hold on to handrails or sturdy surfaces if the ground is slippery.

2. Clean the windscreen
The low angle of the winter sun can be blinding, making it difficult to see pedestrians and other cars. This glare is made worse from a dirty windscreen, worn out wipers that smear the dirt, and (often overlooked) a greasy windscreen interior. Keep sunglasses handy and clean the outside AND the inside of the windscreen to ensure a clear field of vision.

3. Drive like Granny’s in the car
One of the most common reasons for an automotive accident is related to speed. Going too fast increases the risk for hydroplaning or skidding and decreases your reaction time to avoid pedestrians who darted out in front of you or obstacles in the road. While everyone else may be rushing around you, instead imagine you’re taking Granny for a Sunday drive, break and steer gently, breathe, and take your time.

4. Be visible
With 12 hours of dark per day in the winter, being seen is essential. Motorists, check your headlights and brake lights. If the temperatures are particularly low, carry extra bulbs because the cold can make the lights defective.

Cyclists use front and rear lights and reflectors at dawn, dusk, and dark hours. Always have them with you so you’re not caught out.

Anyone out on the road needs a high visibility vest or clothing. Motorists should have one easily accessible in case of emergencies. Cyclists and pedestrians who frequent dark roads should always wear one after dark.

5. Watch out for ice
Most accidents related to ice happen between the hours of 6-11am. Whether you’re walking or driving, look out for that wet patch--it could be a puddle or it could be ice. How can you tell the difference? It can be difficult at first glance, especially if flying down the road.

Black ice forms mostly under trees and side of the roads, so still stick toward the centre where it’s a bit higher.

Proper tyres and footwear can help provide more grip, but exercise caution for the best defence, especially in the morning hours.

Even with the best preparations, accidents do happen! Should the unthinkable occur, know your rights and next steps ahead of time. Here’s a great guide on what to do if involved in a road traffic accident.

Remember, before you call your insurance, call Martin A. Harvey & Co. Solicitors at 021 496 3400 who will be happy to assist you. For further information email us at maharvey@martinharvey.ie or contact us on our website.




 

Douglas Village Shopping Centre Fire




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Information for employees and employers

The impact and gravity of the recent fire in Douglas Village Shopping Centre is now coming to light and management of the centre have confirmed that demolition of the areas of the structure affected by the fire must take place prior to reopening. Consequently, it appears that the centre may now be facing weeks of closure.

This unfortunately has major repercussions for the 50 or so businesses within the shopping centre and their staff. The biggest question for employers and employees alike will undoubtedly be that of pay and employees’ entitlements. In summary, the following scenarios/options may arise, depending on the particular facts and circumstances surrounding each employment relationship.

1. Some of the larger businesses may be able to redeploy staff to other nearby locations/stores and pay employees as normal.

2. Employees may be placed on temporary layoff if the employee’s contract or custom and practice in the business provides for this.

Generally, if employees are temporarily laid off then employers are not obliged to pay employees, however, the issue should be reviewed on a case by case basis and employers and employees alike should refer to their written contracts of employment and specific clauses which deal with temporary layoff and the relevant terms.

Employees who are placed on unpaid temporary layoff may be entitled to Jobseekers’ Benefit or Jobseekers’ Allowance from the Department of Employment Affairs and Social Protection for the days they are not working and should make enquiries in this regard if relevant.

3. Employers and employees may agree a mutually acceptable arrangement such as, for example, employees taking annual leave for the duration, or part thereof, the closure of the shopping centre.

4. The employer may not be in a position to rely on or agree any of the above options and may simply have to pay the employees if they are available and willing to work as failure to do so may be deemed to be a breach of contract.

For further information, please contact the team at Martin A. Harvey & Co. Solicitors on 021 496 3400, email us at maharvey@martinharvey.ie or contact us via our website.




 

Vehicle or property destroyed by fire, your rights explained.



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Douglas Village Shopping Centre Fire – Saturday 31 st August, 2019

Unfortunate events in Douglas over the weekend saw Cork’s emergency services battle one of the biggest blazes in recent memory, causing untold damage at this point in time.

For the many people of Cork whose vehicles remain severely or partially damaged, the next step will involve recovering their losses and we at Martin A. Harvey & Co. Solicitors have a dedicated Accident Management Team to assist and guide you through the process, which includes the following:

1. Recovery of your vehicle when it is safe to do so;

2. Inspection of your vehicle to quantify/estimate your losses;

3. Immediate and interim car hire until you have been fully compensated for your loss (payment deferred until the conclusion of your case and will be made by the insurers of the party responsible);

4. Recovery of the contents/valuables within your vehicle which may have been destroyed. If your vehicle was one of those damaged by what is widely reported to have been another vehicle catching alight, then you will have a cause of action to recover your losses from the following parties: the owner of the vehicle (their insurers), the manufacturer, and possibly the vendor of the vehicle.

At the moment, investigations are ongoing and Cork Fire Service, The Gardai and Health and Safety Authority will be preparing statutory reports to discover the cause of the fire. Your recourse to recover losses will depend on the cause of the fire, which is yet to be categorically confirmed. However, the innocent owners of vehicles within the car park can rest assured that they will be in a position to recover their losses from the above parties’ insurers.

For any further information, please contact our Accident Management Team at Martin A. Harvey & Co. Solicitors on 021 4963400, email us at maharvey@martinharvey.ie or contact us via our website.




 

Wills and probate - don’t wait!



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For obvious reasons, making a will is one of those things in life that most people avoid thinking about. However, passing away without having made a valid will means you will have died ‘intestate’. The result of dying intestate is that an administrator will pay any of your outstanding debts from your estate (all your possessions and assets), and then distribute whatever is left among your living relatives, according to a set formula - a process which is invariably complicated and expensive.

It is easy to assume that when you pass away, everything will go to your immediate family. However, this is not always the case. Making a will ensures that your estate is distributed exactly as you wish. In simple terms, this means that you avoid the risk of your possessions and assets being distributed to those who you would not wish to gift them to.

Making a will also allows you to appoint a person or persons known as ‘executors’ who will ensure that your estate is distributed in line with your wishes.

Another key benefit of making a will is that you do not impose any unnecessary stress or financial burden on your loved ones after your passing. Also, a carefully drafted will can help to ensure that inheritances to be received by the beneficiaries of your will are as tax efficient as possible.

For parents of younger children, having a will also ensures that in the case of your death that the children’s guardianship will be left in the hands of those whom you trust most to do the best job.

At Martin A. Harvey & Co. Solicitors, we have been guiding people through the wills and probate process for more than 80 years and have developed unrivalled skills and experience in this most sensitive of legal areas. So, whether you would like the peace of mind of creating your own will or if you have been tasked with dealing with the provisions of a deceased person’s will, we are here to help.




 

A Brief Guide to Personal Injuries* Claims





Suffering from a personal injury can be a very traumatic experience. Suffering can take many forms, including physical injury and pain, as well as symptoms of fear, anxiety, depression, reduced vitality and psychiatric illness. In our experience, pain and suffering may simply be ignored by insurance companies if individuals approach them directly in order to reach a quick settlement. Without independent medical advice and report/s, you may not have an accurate picture of the true extent of your injuries and suffering either now, or in the future.

Without specialist legal advice you may not be fully aware of your rights and entitlements and how best to deal with a personal injuries claim. Reaching a settlement directly with an insurance company may not be in your best interests and you should seek legal and medical advice to ensure you have the best chance of receiving appropriate compensation for your current and future needs in light of the injuries you have sustained.

It is vital to remember that you have two years from the date of the accident or injury to issue a claim for compensation. Personal injury claims are dealt with by both the Injuries Board and the courts.

The Injuries Board is a statutory body which provides an independent assessment of personal injury compensation for victims of workplace, motor and public liability accidents. The Injuries Board does not, however, assess psychological injury claims nor does it assess personal injury claims that are the result of medical negligence. Any claims which cannot be dealt with by the Injuries Board are instead dealt with through the courts system.

By way of first step in the claim process, a letter should be sent by registered post to the person you believe caused the injury within one month of the accident or injury. The letter should set out the type of accident and the cause of action. In the event that such letter is not issued, a judge hearing the case through the courts system (in the event that the case proceeds via this route) will take this into account and can either refuse to award legal costs to you or reduce any costs award accordingly.

Given the importance of the initial letter, it is advisable that you seek legal advice as early as possible following an accident or injury so that the letter can be drafted by a solicitor on your behalf.

The Injuries Board claims that it is not necessary to instruct a solicitor to pursue a personal injury claim on your behalf but at Martin A. Harvey & Co. we strongly believe that it is important that you have legal representation and advice at all stages of your claim in order to achieve the best possible outcome.

If you would like to discuss a personal injury that you have suffered, please contact the team at Martin A Harvey & Co. Solicitors and we would be happy to assist you. * In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.




 

WHAT TO DO IF INVOLVED IN A ROAD TRAFFIC ACCIDENT





At one stage or another throughout the course of your lifetime driving either you, a close family member of friend will be involved in a road traffic accident. Many accidents are minor in nature but some of course can be very serious. It is very important to know what to do immediately following a road traffic accident to ensure that your interests are fully protected should any issues arise with respect to the circumstances of the accident and the placing of liability with the party at fault.

It is always or immediate recommendation that you contact Martin A. Harvey & Co., Solicitors to take up the necessary advice following a road traffic accident, if possible. There are also a number of important considerations which should be undertaken at the scene of an accident to fully protect your interests going forward and the following should be considered:

1. Immediately check to see if you or your passengers have any injuries of any nature. If injuries are reported, it is imperative that you call the emergency services to seek assistance. Often, in road traffic accidents injuries do not arise for a number of days and it is always our recommendation, irrespective of the extent of the accident that you attend your medical physician for a check-up following a road traffic accident.

2. The positions of vehicles following a road traffic accident are often critical to the determination of liability. With this is mind, it is vital to take photographs of the positions of the vehicle following the accident. Photographs should be taken from as many angles as possible and it can also be very helpful for photographs to be taken of the immediate damage to the vehicle.

It is always our recommendation to contact An Garda Síochána and if possible, do not move the vehicles from the positions in which they were following the collision. This is often not possible and again, the photographs referred to above will be of assistance. Always make note of the identity of the Investigating Member and the relevant Garda Station.

Always take full details of the driver of the other vehicle. This should include name, address and full insurance details to include Insurance Company and policy number. In Ireland, you are obliged to display your original insurance disc in the window of your vehicle and a clear photograph should be taken setting out all the details.

Following the accident, it is important to assess the surrounding area to ascertain whether there is any CCTV footage on buildings or perhaps other vehicles may have caught the accident on dash cam footage.

If the driver of the vehicle at fault accepts liability then and there, it is always our recommendation you contact the Gardaí but it is also strongly advisable to have the other driver sign in writing a full admission of liability along the following lines:

I, fully accept that I am responsible for the accident which occurred at or about Patricks Street on the 1st of January 2019 in which my vehicle was involved with (your name).

Always ensure that the admission of liability is signed and dated.

Following a road traffic accident, even one of a minor nature, it is always important to uplift the necessary legal advice which you may not receive from an Insurance Company dealing with the matter on behalf of the party responsible. For example, the majority of vehicles involved in road traffic accidents will suffer some form of depreciation, car hire for the relevant period of repairs and any fees incurred concerning tow or storage to which you are fully entitled to. The amount of the depreciation will depend on the extent of the damage and the newness of your vehicle. We at Martin A. Harvey & Co., Solicitors will immediately appoint a Motor Assessor to inspect your vehicle and prepare an estimate of repairs.

It is also very important to note that you are fully entitled to have your vehicle repaired by your chosen panel beater/repairer. Insurance Companies will often seek to have the vehicle repaired by a nominated panel beater/repairer but you are entitled to have your vehicle repaired at a garage of your choice. If it is your vehicle then it is your choice where it is repaired.











 

HOUSE CONVEYANCING





Sale Agreed
The conveyance usually begins at the office of the auctioneer. A purchase price for the property is agreed between the buyer and the seller, via an auctioneer.  The purchaser will be required to pay a booking deposit for the house to an auctioneer. The booking deposit is fully refundable at this stage and it is important to note that there is no binding agreement yet in place.

As a purchaser, your next step entails instructing a Martin A Harvey Solicitors to act on your behalf in the sale of the property. For many people, the purchase of a new home will be their first real experience of engaging with a solicitor.

Martin A Harveys role in conveyancing is to conduct and oversee the transaction in a way which best serves the interests of their client, and they will work to ensure that the process is carried out as efficiently as possible for their client. The solicitor will give you the best possible advice so as to ensure the adequate protection of your legal interests during the entire transaction.

If the property you are purchasing is a second hand one, your solicitor should advise you to have a full structural and planning survey carried out by a qualified architect or engineer. The maxim ‘caveat emptor’ i.e. ‘Buyer Beware’ still operates as the law today. Once contracts are signed, the purchaser agrees to take the property as it was at the time of the sale. Therefore, a planning and structural survey is an essential pre-requisite if the property you are buying is second hand.

Dealing with your Bank
The vendors of the property will have their own solicitors working on their behalf in the transaction. The vendor solicitors will draft Contracts for Sale for the property and send them, along with the Title Deeds to the property, to the purchaser’s solicitor. If the purchaser is taking out a mortgage to buy the property, the financial institution will generally require the purchaser to instruct a solicitor. The bank will send the mortgage documents directly to the purchaser’s solicitor to review and be signed by the purchasers in their solicitor’s presence.

The Pre-Contract Enquiries 
The solicitor will then investigate the title documents furnished and raise any necessary enquiries at this stage. Examples of enquires include issues relating to planning and environment searches, rights of way, or the responsibility for maintaining the property’s roads and services. The solicitor will advise the purchaser to proceed to sign the contracts only when the vendor’s replies to the pre-contract enquires are deemed to be satisfactory. As a result, the purchaser can be assured that once the contracts are signed, they will be obtaining what is known as ‘good marketable title’ to the property. In other words, that there will be no issues arising down the line if you wish to sell the property you are purchasing. The presence of good marketable title to the property is a key condition the bank/ lending institution will have as part of their loan offer. The solicitor makes what’s called an ‘undertaking’ to the bank that the purchasers will have good title to the property. This ‘solicitor’s undertaking’ is a legally enforceable promise to the bank to not use any of the loan funds to purchase the property until the marketability of the title has been confirmed.

Contracts
Once the terms of the contracts have been fully agreed to and the title to the property has been thoroughly investigated, the solicitor will advise their purchasers to proceed. The purchaser’s solicitor returns the signed contracts to the vendor’s solicitors. When the seller signs the contracts and returns same to the purchaser, a binding agreement comes into force. Both parties are now bound to complete the sale at this point.

Upon return of the contracts, the purchaser will also furnish the vendors with what is known as a ‘contract deposit.’ This is generally agreed as being 10% of the purchase price of the property less the booking deposit paid. A closing date for the sale will also now be agreed between the parties. The closing date will be the day the purchasers can collect the keys to the property and move in. In addition, the purchaser’s solicitor contacts the lending institution on the buyer’s behalf for the draw down of their loan funds. Prior to the release of these funds, the financial institution will normally require the purchaser to take out life insurance policy and a home insurance policy, the details of which are arranged between the purchaser and the lender separately.

Completion
We have now reached the completing stages of the transaction where both solicitors will arrange for the final closing date of the sale. This refers to the date which the remainder of the purchase price is paid and when the purchasers can finally move into their new home. On the day of the close of the sale, the vendor’s solicitor will carry out what is known as ‘closing searches.’ These are Judgement, bankruptcy, Revenue and Sheriff searches which are carried out on both the purchaser and seller of the property. Once satisfied with the results of the searches, the purchaser’s solicitor will release the balance of the purchase price to the seller’s solicitor. Following this, the keys to the property are released the purchaser and they can now officially move in to their new home.

Stamp Duty & Registration of Title
The final stage of the conveyancing process involves the stamping of the Transfer Deed with the Revenue Commissioners, and secondly the registration of title with the Property Registration Authority. The stamp duty payable is based on the type and cost of the property. For residential properties valued up to €1m the stamp duty is 1% of the purchase price of the house. If the property is a new build, the stamp duty calculated is on the purchase price less the VAT (currently 13.5%).




 

Employment Law update: Bullying in the workplace





A recent decision in the case of Catherine Hurley v An Post provides a very helpful and detailed outline as to the steps and duties owed by an employer in circumstances where an employee alleges bullying against a co-worker. The matter came before the High Court and was presided over by Mr. Justice McDermott.

In July 2006, the Plaintiff was involved in an incident where a co-worker became aggressive and came nose to nose with the Plaintiff. The Plaintiff met with her supervisor immediately after the incident and an Incident Report Form was completed. The Plaintiff was later brought home by another employee such was her level of upset. The Plaintiff did not return to work until the 15th of August 2006 by which time the other individual involved in the incident had been suspended. The other party involved in the incident had a long history of disciplinary issues and it later transpired that when he was suspended he refused to leave the premises and the Gardaí were called.

A petition was later signed by 96 of the 132 staff of An Post expressing their disgust at the treatment of the other employee and in August 2006, unofficial action without notice was taken by the members of staff. Mr. Justice McDermott stated that it was clear that the “high level of resentment was also reflected in the staff’s treatment of Mrs. Hurley when she attempted to return to work”.

Mr. Justice McDermott was fully satisfied that management were aware of this continuing isolation which was causing the Plaintiff stress. Mr. Justice McDermott was satisfied that this was subjected on the Plaintiff by her co-workers and it gravely affected her health. When the Plaintiff attempted to deal with the situation, An Post made few or little efforts to engage with her or to caution the work-force as to their treatment of Mrs. Hurley.

An Post later alleged that Mrs. Hurley failed to make a written complaint in accordance with the company’s code, however, Mr. Justice McDermott was of the view that this completely disregarded the advice given to Mrs. Hurley by local management who she attended on. Mrs. Hurley was told by the local management to adopt a wait and see approach.

The Court considered Section 8 of the Safety Health and Welfare at Work Act, 2005 and outlined every employer’s obligation to protect, so far as is reasonably practicable, the safety, health and welfare at work of its employees. An employer’s duty extends to managing and conducting work activities in such a way as to prevent any improper conduct or behaviour likely to put the safety, health or welfare at work of its employees at risk.

In considering the circumstances and the legislation, Mr. Justice McDermott was satisfied that what occurred to the Plaintiff was the legal definition of bullying as found in the Industrial Relations Act, 1990. Workplace Bullying “is repeated, inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and / or in the course of employment, which could reasonably be regarded as undermining the individual’s right to work”.

The Court was fully satisfied that the employer had failed in both his common law duty of care to the Plaintiff and furthermore it’s statutory duty pursuant to Section 8 of the Safety, Health and Welfare at Work Act. In particular, the Court drew reference to the fact that a code existed and while the Plaintiff tried to invoke it, the advice from local management was at all times to see if things would blow over.

This is a very important case for employers and in particular, it is important to have, at a very minimum, a detailed bullying and harassment policy in place which consists of a code of practice. The policy must be enshrined in all employees and in particular managers so as when a complaint is made, the appropriate steps are taken in accordance with the policy.

It is essential for employers to be immediate and proactive when dealing with any issues concerning bullying. Employees should always be encouraged to make a complaint and the procedure should be discussed with them in detail and all employees should be fully comfortable with the process.

An employer’s duty does not stop once a complaint has been made. There are obvious obligations to investigate and to ensure that no further victimisation occurs when an employee makes a complaint



May 21 2018


William Harvey LLM