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The Supreme Court has been asked to urgently hear an appeal against a key High Court judgment in the case of terminally ill Ruth Morrissey.

The HSE and two laboratories told the court today the judgment has far-reaching consequences for the Cervical Check tribunal, other litigation about cervical cancer, cancer screening services and medical diagnosis generally.

The judgment was given by Mr Justice Kevin Cross in the case of Ms Morrissey, who is terminally ill with cervical cancer, and her husband Paul, from Limerick.

The concerns of the HSE, Quest Diagnostics Ireland Ltd and Medlab Pathology Ltd, centre on the High Court finding screeners should have “absolute confidence” about the adequacy of a slide sample and that a test result has no abnormalities before passing it as clear.

They say that introduces a standard in the relevant legal test for negligence that is incompatible with cervical cancer screening.

Pat Hanratty SC, for the HSE, said the judgment caused “widespread confusion” and their concerns include the “absolute confidence” test introduced “an unnecessary embellishment which could affect other areas of medicine”.

Michael Cush SC, for Quest, said the trial judge failed to appreciate evidence which meant the absolute confidence standard is “unworkable and inappropriate” and is not actually applied in screening programmes.

That evidence included an “undeniably excellent” English screening programme had a false negative rate of between 44-55%.

The Morrisseys dispute the judgment has the consequences contended for but their counsel said it would be an “enormous relief” to them if the litigation was over and they would agree to a Supreme Court appeal confined to the issue of standard of care.

Patrick Tracey SC, for the Morrisseys, said there was “widespread misunderstanding” or Mr Justice Cross’ judgment which, he said, had not imposed a standard of “absolute certainty” but rather one of “absolute confidence”.

Having heard from the sides, a three judge Supreme Court, comprising the Chief Justice, Mr Justice Frank Clarke, Mr Justice John MacMenamin and Ms Justice Iseult O’Malley, said they will decide shortly whether to hear a “leapfrog” appeal.

Any such appeal will be heard in early November.

An appeal is normally brought to the Court of Appeal but the Supreme Court can permit that route to be by-passed and hear an appeal itself, bringing finality to litigation.

Ms Morrissey was diagnosed with cervical cancer in 2014 and the High Court case related to cervical smears taken under the CervicalCheck screening programme in 2009 and 2012. She was not told until May 2018 that a 2014 review showed two smears taken under the programme were reported incorrectly.

The couple were awarded €2.1m damages and the Supreme Court was told today the government this week confirmed to the Morrisseys, irrespective of the outcome of the appeal, they will retain the damages.

Mr Hanratty said that was effectively being done by an “ex gratia” payment.

The court heard the HSE and Quest are not appealing the sum of damages but Medlab is.

Eoin McCullough SC, for Medlab, said some of the damages are dependency damages recoverable only in claims for wrongful death under the Civil Liability Act and a decision on that issue is of significance for other cases and for the Cervical Check tribunal.

Medlab’s focus in the appeal is the absolute confidence issue and the finding concerning inadequacy of the 2012 slide assessed by Medlab, he said.

Mr Hanratty, for the HSE, said it, and the State Claims Agency, as manager of all cervical cancer litigation, said the “absolute confidence” standard has potentially serious implications in a much wider context, including in relation to diagnosis. If that standard applied to diagnosis, “you can imagine the consequences”.

The HSE also want to appeal the High Court findings concerning primary and vicarious liability.

Mr Cush, for Quest, accepted the Supreme Court has a concern about the breadth of the appeal and said, were it not for the urgency of the matter, this appeal would normally first be decided by the COA.

The matter was urgent because of the implications of the “absolute confidence” finding and the causation issues which had implications extending beyond this case, he said.

Mr Tracey, for the Morrisseys, said complex evidence militates against a Supreme Court appeal and any such appeal should be confined to the standard of care issue or else the entire appeal should be heard by the COA.

The core issue before the cervical check tribunal is standard of care, he said.

Disputing the claimed implications of the judgment for screening, he said Ireland had in 2008 sent liquid based cytology samples for testing in another jurisdiction, something not done by any other country, and restoring liquid based cytology here would get to the kernel of screening concerns.

If there is no test of absolute confidence, “what is the test?”, he asked. He also disputed the judgment had any implications for medical diagnosis.

breakingnews.ie

A JUDGE has directed that the facts relating to a personal injuries claim by a taxi driver be forwarded to the Director of Public Prosecutions Claire Loftus for her consideration.

Judge James O’ Donohoe told Chris Nwachukwu of Brega Hamlet Lane, Balbriggan, Co Dublin, that he had misled solicitors and wasted the court’s time in his €60,000 damages claim for personal injuries arising from a traffic accident.

Barrister Shane English, counsel for the defendant Ms Katarina Paucova of Castlegate Way, Adamstown, Lucan, Dublin 22, told the Circuit Civil Court that all invoices submitted by Nwachukwu in relation to alleged expenses all pre-dated the accident.

Mr English, who appeared with Newman Solicitors, said Mr Nwachukwu had submitted invoices totalling €1,279 to the court in respect of physio he had received and a sensor replacement installed in his car.

Counsel said the receipts submitted by Mr Nwachukwu had been from dates before the accident involving Ms Paucova on October 10th 2015. The court heard Nwachukwu had been involved in a number of previous car crashes.

Mr English told the court that Nwachukwu had a total of four damages claims from car crashes and that two had pre-dated his claim against Ms Paucova.

He said the one currently before the court had been in relation to a side impact collision, yet Mr Nwachukwu had submitted receipts for a sensor replacement in his car.

Mr English asked Judge O’Donohoe to dismiss the case on the basis that Mr Nwachukwu had submitted false and misleading evidence to the court.

Barrister John Nolan, counsel for Nwachukwu, told Judge O’ Donohoe that he would not have taken on his client’s case had he been aware of the information that had come to light during the trial.

Judge O’Donohoe said Mr Nwachukwu had not appeared to understand the seriousness of his situation.

Dismissing the €60,000 claim Judge O’Donohoe told Nwachukwu he was awarding costs against him and was going to send details of his case to the Director of Public Prosecutions immediately.

Online Editors

A 13-year-old boy, whose ear was “tightly gripped” and held by a teacher in class, has been awarded €17,500 damages against his school and the Dublin and Dun Laoghaire Education and Training Board.

Judge James O’Donohoe heard in the Circuit Civil Court on Tuesday that Logan Ryan was assaulted by a teacher while he sat at his desk last year in Deansrath Community College, Westbourne, Clondalkin, Dublin.

Barrister Conor Kearney, for the boy, told the court that the assault occurred in November last year and was followed by a second assault only three days later from the same teacher.

Mr Kearney, who appeared with Chris Horrigan of Blake Horrigan Solicitors, said the schoolboy, who is now aged 14, had been sitting at his desk when his teacher grasped the upper aspect of his right ear lobe and held it tight for about 10 seconds before releasing his grip.

He said the assault occurred on November 16th last year and on November 19th, while the boy was sitting leaning forward in his seat, the same male teacher leaned across and placed his forearm against the boy’s chest pushing him backwards.

Mr Kearney said the boy had been held in this backward position for about five seconds.

He said that in the aftermath of the first incident his right ear had become painful and discoloured at the point of contact by his teacher. He had also developed some back pain as a result of the second incident.

Since the incidents the boy had been fearful of meeting the teacher in his school grounds and had felt anxious while attending school. He had suffered pain, distress and discomfort.

The boy sued the defendants through his mother Sandra Ryan, of Kilronan Court, Clondalkin. Ms Ryan stated in an affidavit before the court that the teacher in question had written and apologised for his behaviour relating to both incidents.

Judge O’Donohoe approved a settlement offer of €17,500 on behalf of both defendants.

irishtimes.com

Ryanair bids to overturn ruling it must compensate passengers after strikes

Ryanair wants the High Court to quash the aviation regulator’s decision to order the airline to compensate a number of people affected by last year’s strike action.

The company claims the Commission for Aviation Regulation (CAR) was wrong in law to make the airline liable for payments under an EU regulation which provides compensation as a result of delayed or cancelled flights.

A passenger is entitled to a maximum of €600 for delays of three hours or more providing it qualifies under EU 261.

The airline says strikes qualify as an “extraordinary circumstance”, which means compensation is not payable.

Ryanair recognised trade unions for the first time last year and experienced a number of days of industrial action, including one-day strikes by Ireland-based pilots. CAR received a number of claims for compensation under EU 261, five of which CAR determined Ryanair is liable for.

They form effective test cases for Ryanair’s legal challenge, Martin Hayden SC, for the airline, told the court yesterday.

Counsel said making Ryanair liable in the circumstances of strike action completely distorts the negotiation process between the unions and airline.

It was argued that, because seven days’ notice has to be given of any flight cancellations, the unions can go “down to the line” and the airline is faced with acceding to the unions’ demands or cancelling flights.

Mr Justice Seamus Noonan granted Mr Hayden leave to bring judicial review proceedings and also put a stay on CAR’s May 31 decision in relation to the five compensation claims pending further order or determination of the case.

He also gave CAR liberty to apply to vary the order.

The application was made on a one-side-represented-only basis and comes back to court later this year.

The judge also suggested Ryanair’s solicitor should write to the five claimants notifying them of the case.

Irish Independent

Sensitive personal details of 147m consumers hacked after company failed to take basic precautions to protect data despite warnings

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Equifax will pay up to $700 million as part of a settlement with US authorities after a 2017 hack that exposed the personal data of close to 150 million people whose most sensitive financial information is tracked by the consumer credit check company.

The resolution with the Federal Trade Commission (FTC), Consumer Financial Protection Bureau and 50 state attorneys-general draws a line under the hack, the largest-ever breach of consumer data. The company has also settled with claimants in a class-action lawsuit.

“Equifax failed to take basic steps that may have prevented the breach that affected approximately 147 million consumers,” said Joe Simons, FTC chairman, in a statement on Monday.

“This settlement requires that the company take steps to improve its data security going forward, and will ensure that consumers harmed by this breach can receive help protecting themselves from identity theft and fraud,” he added.

Mark Begor, Equifax chief executive, said: “This comprehensive settlement is a positive step for US consumers and Equifax as we move forward from the 2017 cyber security incident.”

The settlement comes two years after the breach in July 2017, when hackers were able to steal data, including social security numbers, after Equifax had failed to patch its systems, the FTC said.

The company had been warned of a security vulnerability in March that year but failed to take action until the hack.

“Hackers were able to access a staggering amount of data because Equifax failed to implement basic security measures,” the FTC said on Monday.

The names and dates of birth of a least 147 million Equifax customers were stolen in the hack, as well as 145.5 million social security numbers and 209,000 payment card numbers and expiration dates.

Equifax was forced to scrap executive bonuses and suspend share buybacks last year, in anticipation of fines and lawsuits resulting from the hack.

The settlement with US authorities follows action by UK regulators last September. Equifax was fined £500,000 – the maximum penalty allowed by law at the time of the hack – after it was revealed hundreds of thousands of British customers had also been affected.

The UK Information Commissioner’s Office said Equifax had collected British customer data and stored it in the US.

Equifax will pay $300 million into a compensation fund for affected consumers as part of the settlement with the FTC, Consumer Financial Protection Bureau and state AGs, with the potential to add up to $125 million more. It will also pay $175 million to the state AGs and $100 million to the consumer protection agency in civil penalties.

In addition to the cash payments, Equifax will also provide all US consumers with six free credit reports every year for seven years. As part of the class-action settlement, affected consumers will receive 10 years of free credit monitoring.

Lawyers for the class-action claimants said the cost to Equifax could be as much as $2 billion if all 147 million members of the class signed up for free credit monitoring. They also said the company had been required to spend at least $1 billion over five years on cyber security.

The company will also be required to deploy an “aggressive” social media campaign, and advertise via radio, print and digital outlets to reach individuals entitled to compensation. – Copyright The Financial Times Limited 2019

irishtimes.com

Man faces jail if he doesn’t leave home

A judge has warned a man who continues to live in his repossessed home that he may face prison if he does not vacate the property in the next seven days.

Judge Jacqueline Linnane heard yesterday in the Circuit Civil Court that Martin Tucker’s home at Danesfort, Castle Avenue, Clontarf, Dublin 3, had been repossessed by Havbell Dac in August 2018 after Mr Tucker failed to make repayments on his mortgage.

Barrister Gary Hayes, counsel for Havbell, told the court that Mr Tucker and his ex-partner had received a loan of €260,000 from Irish Life and Permanent plc in June 2003. Mr Hayes said that in November 2017 Mr Tucker had been in breach of his monthly repayments with arrears reaching €75,700.

The property had been taken into the possession of the Dublin Sheriff on March 21, 2019. Counsel said that on May 16, 2019, Mr Tucker re-entered the property accompanied by his pregnant partner without notifying Havbell or its solicitors.

Counsel also said Mr Tucker had broken into the property as he had no other way of accessing it as the locks had been changed. The court heard Mr Tucker had changed the locks after moving back into the home.

Judge Linnane told Mr Tucker of the serious consequences he would face if he did not agree to leave the property in the next seven days. She said he must also agree to hand over the keys to Havbell and remove the security system.

She said he had been in contempt of court and an application could be made to have him committed to prison if he did not agree to vacate and deliver up possession to Havbell.

Irish Independent

Widow settles case after death of husband from carbon monoxide poisoning for €170k

A pensioner was overcome and died of carbon monoxide poisoning after he went to check on a house where petrol generators were turned on to power the heating of a newly constructed building.

Martin Flannery was found unconscious in his niece’s newly built house next door to his Mayo home four years ago. The house was being heated in advance of a first fix airtight test.

In the High Court this week, Mr Flannery’s widow Eileen settled an action over his death for €170,000.

An inquest in to the 66 year old man’s death recorded a verdict of accidental death. At the time the coroner said Mr Flannery was obliging his brother and his niece by checking on the house and sadly the effects were “devastating.”

The tragedy, Coroner John O’Dwyer said was compounded by the fact that most of those involved were related to one another.

Martin Flannery was found unconscious in a room at the back of the house and despite efforts to revive him, he was pronounced dead in hospital.

Mr Flannery’s wife of 42 years , Eileen Flannery, Kilkeeran, Ballinarobe, Co Mayo had sued Mr Flannery’s niece Laura Costello and her husband Declan Costello also of Kilkeeran, Ballinarobe, Co Mayo as a result of the accident on September 11,2015.

Mr Flannery was checking two petrol generators in the house his niece and her husband had built. The generators had been set up to heat the house before an air tight test.  Mr Flannery who had three children and four grandchildren was overcome and died of carbon monoxide intoxication.

It was claimed there was an alleged failure to have any proper or adequate system of ventilation.

It was also claimed the house has been allegedly allowed to become toxic with carbon monoxide fumes and to constitute a serious hazard for those entering the premises.

It was further claimed there was an alleged failure to cordon off the house while  the generators were in use and until the place had been made safe for those entering the premises.

The claims were denied.

The house was at first fix stage in construction and had an air tight test scheduled for later that day. The house had to be heated before the test and two fan heaters and an oil heater were set up off two petrol generators, as electricity had not yet been connected to the house.

Both generators had been operated in the house the night before for about an hour and were switched off overnight.

The next day on September 11,2015 the generators were turned and checked on again . Mr Martin Flannery had checked in the generators at 10.30am and was due to check on them again after bringing his wife to the local town.

When the air tight specialist arrived to carry out his test at around 12.30 pm he switched off one of the generators. He noticed a smell and became woozy as he walked up the stairs . He left the house but on return he found Mr Flannery unconscious in a room at the back. He dragged the man outside but despite  efforts to revive him, Mr.Flannery was later pronounced dead in hospital.

Irish Independent

Estranged couple with €1.5m Spanish villa agrees to sell off house in Dublin

A separated couple with a €1.5m Spanish holiday home have agreed to sell one of two Dublin properties they own in order to settle a €2m mortgage debt with KBC bank.

Judge Jacqueline Linnane heard in the Circuit Civil Court yesterday that Gerard May, who runs a roofing business, and his ex-partner Mary May had each been living at a different Dublin address following their separation.

The court was told that neither of the Mays had made mortgage repayments on either property from July 2016 to January 2019. Judge Linnane heard that a payment of €1,400 had been made in January before proceedings were issued in February of this year by KBC bank.

Barrister Padraic Hogan, counsel for Mr May, told the court that his client had been anxious not to sell his house at Coldwater Lakes, Saggart, Co Dublin, as it had been his main home.

Mr Hogan, who appeared with McCanny Solicitors, said Mr and Ms May owned a holiday home in Marbella, Spain, and hoped for an opportunity to sell the Spanish property in order to make a payment to KBC bank.

Judge Linnane said that due to the fact there had been someone else living in the Marbella home who had been paying its mortgage for the past few years, and that it had been signed over to Ms May, it could lead to a three-corner fight.

Following negotiations outside court, Mr Hogan told Judge Linnane that all parties had agreed to an order for possession being granted on the property at Woodstown Rise, Ballycullen Road, Knocklyon, Dublin 16, which had been occupied by Ms May.

Judge Linnane granted a six- month stay on the repossession order to allow time for the house to be sold.

Keith Rooney, counsel for KBC, told the court that the Mays had received a loan of €555,382 from KBC bank for the purchase of the Knocklyon residence, which now had arrears of €166,586.

Judge Linnane also heard that the Saggart property occupied by Mr May had been bought with a loan of €1.5m from KBC and now had arrears of over €700,000.

Mr Hogan was granted an adjournment on any decision on the application for repossession of the Saggart property. Counsel said he had a technical point relating to the fact Judge Linnane had not been provided with any official documentation to prove that KBC had a right to seek the money from the Mays after the bank changed its name to KBC Bank Ireland Plc.

Irish Independent

A 52-year old man who suffered a brain injury in a single punch assault on a Dublin street has been granted permission by the High Court to reject an award of over €1million by the Criminal Injuries Compensation Tribunal.

Stephen Avery can now appeal the compensation award to a full sitting of the tribunal.

Mr Avery was the victim of an assault outside the City Arms Pub, Prussia Street, Dublin on October 27th, 2008. He suffered a traumatic brain injury and while he can walk, he needs care.

Mr Justice Kevin Cross said he thought it was in the best interests of Mr Avery to reject the award and to proceed by appeal. The judge hoped that appeal could be heard as quickly as possible.

The judge noted Mr Avery, who had been injured in an unprovoked attack, had brought separate proceedings against the pub but that case had previously settled for €30,000.

He also noted the attack occurred outside the pub and it could not be held responsible and Mr Avery’s claim was to the tribunal.

In a submission to the tribunal, Mr Avery’s side said he had been engaged in a minor scuffle earlier on in the night in question, but was punched in the face by a man who was not involved in the earlier altercation.

It said Mr Avery had been asked to leave the pub and walked out but was punched and hit his head on the pavement. A taxi driver witnessed the assault.

A man was arrested and charged with an offence under Section 4 of the Non Fatal Offences Against the Person Act and he pleaded guilty. He was sentenced to five years imprisonment with half of the sentence suspended for a period of three years.

In a written decision, the tribunal said there was no evidence before it that Mr Avery was in any way responsible for his injuries. It noted he had previous convictions in the UK relating to burglary and handling stolen goods in the 1990s but it was satisfied he had turned away from crime to a very large extent when he moved to Ireland in 2000.

Counsel for Mr Avery, Eoin McCullough SC said an award of €1.16m was made by the tribunal but his side contended a number of headings could be revisited.

Mr Avery now has poor balance and walks with a limp and has right sided weakness.

In an affidavit, Mr Avery’s sister Linda Milbank said her brother currently lives in the UK and she did not believe he understands the complexities involved in the appeal.She said he is not able to manage his own money and will need considerable care into the future.

irishtimes.com

A brother and sister who tried to defraud their siblings in their dead mother’s will have been warned by a judge to expect jail.

Adjourning passing sentence on David Lauro (50) and his 43-year-old sister Elaine Lauro at Craigavon Crown Court in Co Armagh, Judge Patrick Lynch QC said on Wednesday their offences “strikes at the very heart and foundation of decent family values”.

Remanding Mr Lauro into custody and freeing Ms Lauro on bail until Friday, the judge said she should use the time “to make suitable arrangements for your children”.

At an earlier hearing both Mr Lauro, a Scout leader from Hollybrook Grove in Newtownabbey, Co Antrim and his sister, from Lough Moss Park in Carryduff, Co Down, pleaded guilty to a count of fraud by false representation in that on February 26th, 2016, they told their siblings their deceased mother Anne Lauro “had signed an original will dated December 27th, 2015”.

Mother-of-three Elaine Lauro also confessed to a further offence of using a false instrument, namely a cheque for £167,000 (€185,000), with intent to induce Santander bank to accept it as genuine, a day earlier on February 25th.

Opening the prosecution case, Public Prosecution Service (PPS) counsel Nicola Auret confirmed that fraudulent cheque, written six days after Anne Lauro died from cancer, “would have cleared out” her account.

She described how the defendants “called a family meeting” on February 28th, 2016 when they showed their three siblings, a sister and two brothers, “a document which they claimed was the will of their dead mother”.

Ms Auret said the purported will set the defendants as executors and while it outlined there were properties and money to be divided among them, “in particular it was stated that the deceased’s business, Kavanagh’s, a long standing operating business, was to be given to the two defendants”.

It also bequeathed to Elaine Lauro a property in Co. Sligo valued at £154,000 (€170,000) and to David Lauro, a property in Co. Leitrim valued at £31,000 (€34,000).

The lawyer told the court that eight months later, in October 2016, the PSNI received a report from a brother Mark Lauro “his suspicions that the signature on the will had been forged,” prompting a criminal investigation.

His sister Diane Aston made a similar statement, “that she didn’t believe the signature was her mother’s”, so detectives seized the will purported to have been signed by Anne Lauro along with other documents which she had genuinely signed.

The police enquires also uncovered the cheque for £167,000 (€185,000) and Ms Auret said that after the will and all the other documents had been given to a forensic handwriting expert “he concluded that the signatures on both the will and the cheque were forged”.

The brother and sister were both questioned by police on July 10th, 2017 but they denied any fraud had taken place.

Elaine Lauro claimed her mother suffered from arthritis so she had written for her sometimes but Mrs Lauro “always signed the documents.”

She admitted lodging the £167,000 (€185,000) cheque which the bank had stopped but told police it had been her mother’s wish and claimed “she didn’t realise” she was wrong to lodge it after her death.

David Lauro claimed his mother had read the will “aloud and after this, he said he saw his mother sign it” before he signed as a witness.

Ms Auret said that in relation to the scale of the fraud, count two was “relatively easy” as it related to a forged £167,000 (€185,000) cheque but that in relation to the purported will “it’s not as easy to put a figure before the court.”

She told the court that in addition to the two properties in the Republic with the combined value of £185,000 (€205,000), the “long standing account” for the Kavanagh family business provided accounts for the last three years which showed the business had been operating at a loss.

There was however £14,000 (€15,500) of stock to be taken into account.

She added: “We submit that there’s a gross breach of trust in this case and that the fraudulent will has deprived the injured parties of ever knowing what their mother’s wishes actually were and what she actually wanted.”

Defence counsel Patrick Taylor, acting on behalf of Mr Lauro, conceded the fraud represented “an egregious breach of trust” but added: “I tentatively invite you to give some credence that there is a ring of truth to the assertion from the defendant that it was his mother’s wish that he and Elaine receive the business.”

He said that David Lauro, a father-of-five, and Elaine Lauro were the only two siblings who worked in Kavanagh’s, adding that while Mr Lauro maintains it was his mother’s wish to hand the business to the defendants, “he now accepts that this amount to a fraud…he had convinced himself he was acting to carry out his mother’s wishes”.

The lawyer highlighted that while a fraud was committed, “no money or property was obtained” and it was not committed over a prolonged period of time.

Conor Lunney, defence counsel for Elaine Lauro, said the offences had caused an “irrevocable split” in the family and he argued that given the “unusual background” to the case, coupled with the fact that Elaine Lauro is a single mother of three, it was an exceptional case despite the breach of trust.

“It’s no surprise to hear that she’s extremely concerned about the prospect of going to prison,” said the lawyer, who further conceded that his client “was the prime mover in relation to both signatures”.

Adjourning passing sentence to Friday, Judge Lynch told the lawyers he could not identify any features which would make the case exceptional and thereby justify potentially suspending any prison sentence.

“The court and any individual who heard the proceedings will be alarmed by the behaviour of the two defendants in this case that at what was a difficult time for the family that they should be conspiring to appoint themselves large sums of money,” said the judge.

irishtimes.com