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Archive for February 2011

Don’t Vote, sure it makes no difference ! #GE11

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Over the past few days I’ve witnessed a lot of apathy from people concerning the forthcoming General Election here in Ireland this coming Friday. A lot of those I’ve spoken with have taken the view that voting is a waste of time and won’t matter one way or another. Some have never voted at all in the past while others have and have been sickened by the politicians who they feel have let them down. So, should we vote on Friday or not? Will it make a difference either way?

I feel it worth observing that the most successful politicians  have been those that have targeted the people they feel will vote for them and literally go after their vote. This extends to having a list of those people and if later on, on the day of the Election they observe that the person hasn’t voted, they will actively pursue that person and literally drag them to the polling station to vote. This is seen with Fianna Fail busing people to and from the Polling Stations. Watch the Fianna Fail people loading the elderly into their cars ! So, the ‘professional’ politicians know how to get their vote out, while the younger more idealistic candidate rely on people voting for them but does not ensure that they get their vote ‘out’ so to speak. With this system in place it is no wonder that the major parties end up being elected. So, how can you compete with this ‘professional’ operation. It is professional as the main parties pay people to do this work.

It might sound blatantly obvious but to make your vote count you have to Vote ! No use sitting back and saying that your one vote won’t matter either way. It does. There are so many people who take this attitude that they actually form the majority of those eligible to vote. Not to mention the fact that people have fought and died for the right of  One Man One Vote !

If you are still undecided then read on. By not voting, your name remains unticked on the Electoral Register in the Polling Station. Someone else may decide to, illegally, use your vote. There are cases of impersonation at the Polls and it has been suggested that there may in fact be deliberate policy by some politicians to sponsor such illegal acts. How often have you heard people joking; Vote early and often? To get away with such activity these people need help from those who are observing who has and hasn’t voted. I for one would not like to see my vote being robbed from me and used to put some shady politician back in power. The only way to avoid this happening is to go to the Polling Station yourself and use your vote. But you say; who do I vote for, sure they are all the same. Well if you firmly believe this then use your vote by spoiling same. Just get your voting paper and write on it. Then post it in the Box provided. Personally I think this is a terrible waste of a Vote but nonetheless it is you deciding what to do with your ballot paper not someone else.

Who to vote for? Well a lot of people say they want change. To achieve this then vote for a candidate who actually says that he/she wants to achieve this. Question them and read their literature. Make an informed choice. Please, if you want change don’t just vote for anyone on a whim. Remember that those elected make decisions that determine our future. Unlike the unrest in the Middle East at present, we found it impossible to oust Brian Cowen and his Fianna Fail Party. In our democracy we protest but lack the capacity to oust our Government in such a system. Some people say that we need strong Government so you should only vote for established politicians. Maybe a weak Government would be preferable if it attempted to put the interests of the Irish people first. For too long the establishment has supported the wealthy class in its extravagant endeavours against the welfare of the most vulnerable in our society.

So, do you use your vote or not? It’s entirely up to you and is your right to decide whether to vote or not to vote. Please though, don’t let someone else use your vote or let the established parties back into power by not voting. Otherwise it will be Your Fault if we get more of the same. So make your vote really count and use it wisely.

Note: I mentioned Fianna Fail in this article. They have been acknowledged in the past to be the most effective Electoral Machine in Irish Politics and I do not accuse or infer any wrong doing on their behalf. In no way do I endorse any Party or Independent Candidate in this article nor do I criticise anyone for voting for any major party. It is entirely the individuals right to vote for who they so choose.

LegalEagleStar ,  Wednesday , 23rd February , 2011

Written by LegalEagleStar

February 23, 2011 at 2:55 pm

I Witnessed a Brutal Car Accident

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Q: My name is Fidelma and I witnessed a brutal car accident where my husband was in the car in front of mine and a car swerved and crashed into the driver’s seat of his car. My husband was taken to the hospital and received medical attention and has a personal injury case pending in the courts at the moment. I was in such shock and distress because I instantly thought he had been killed and much of the day is a blur. I have terrible anxiety and have a fear of driving and am literally scared of everything. It feels silly but I attended my GP and he referred me to a clinical psychologist who I have been attending for several months. I know I wasn’t in the accident but it has caused me such psychological side effects and now I have to spend a lot of money attending the clinical psychologist who I find has helped me out greatly. I just wondered was there any way I could have a claim against the driver who caused the accident?


A: The law on what is termed ‘nervous shock’ has been awarded in cases for over 100 years (Byrne v Great Southern & Western Railway Co. of Ireland (1884) unreported; cited at 26 LR Ir 428). The most important case that has been ruled in the Courts in this regard was the case of Kelly v Hennessy [1995] 3 IR 253. This Supreme Court set out five elements that must be established in a case in order to recover damages for psychiatric injury:

(a) that he or she actually suffered a recognisable psychiatric illness;
(b) that such illness was shock-induced;
(c) that the nervous shock was caused by the defendant’s act or omission;
(d) that the nervous shock sustained was by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff;
(e) that the defendant owed him or her a duty of care not to cause him or her a reasonably foreseeable injury in the form of nervous shock as opposed to personal injury in general.

You must also apply the test for negligence actions and show that a duty of care existed between the parties together with proximity, reasonable foreseeability and public policy considerations (Glencar Explorations PLC v Mayo Co Council [2002] IR 84). These elements must be established through the facts of each particular case together with the five elements as laid out by the Supreme Court. (Note, a case which the public policy grounds have prevailed is Alcock v  The Chief Constable of South Yorkshire Police [1991] 4 All ER 907).

In Kelly v Hennessy, the Plaintiff’s husband and two daughters had been seriously injured in a car accident caused by the Defendant. The Plaintiff was not at the scene but was informed by telephone and later brought to the hospital. Upon arriving at the hospital the Plaintiff witnessed the aftermath of the accident where one daughter spent a year in hospital and her husband and other daughter spent three months. The Plaintiff suffered depression and post-traumatic stress disorder (PTSD) as a result. The High Court awarded damages to the Plaintiff and held that her injuries were a reasonably foreseeable consequence of the Defendant’s negligence in the case. The Defendant appealed to the Supreme Court on a point of law and also against quantum. The Court considered the earlier case of Mullally v Bus Éireann [1992] ILRM 722 and the English case law, most notably, McLoughlin v O’Brian [1983] 1 AC 410. The Supreme Court upheld the decision of the High Court and set out the criteria in such a case which I have laid out above.

A recent Supreme Court decision is that of Devlin v National Maternity Hospital [2008] 2 IR 222. In this case the Plaintiff’s suffered shock and depression upon discovering that the Defendant hospital had retained the organs of their stillborn child without their previous knowledge and consent. The Plaintiff’s lost their case in the High Court as they could not satisfy element (d) of the Kelly v Hennessy elements in that they could not show that “the nervous shock sustained was by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff”. The Supreme Court upheld the High Court decision and found that the Plaintiffs had satisfied the remaining elements but not that of (d) and found that the law of negligence could not be extended to include such claims as any such extension could have serious repercussions. The Supreme noted, however, that they were not in any way endorsing the previous practice of the hospital which no longer took place.
The Court will consider the relationship between the Plaintiff and the primary victim (proximity of relationship), the time of the Plaintiff’s arrival at the scene of the accident (proximity in time and space) and the onset of symptoms (element of sudden shock).

With the limited facts that I have before me, Fidelma must consider the five elements as set down in Kelly v Hennessy and determine whether she can satisfy a court that she ticks all the boxes so to speak. There is also the general negligence criteria which a Plaintiff must establish. The relationship of husband / wife will normally satisfy the proximity of relationship element. Fidelma was at the scene and witnessed the accident so no question arises as to the proximity in time and space of the accident. In relation to the onset of symptoms, Fidelma has been referred to a clinical psychologist so I would suggest that the psychologist prepare a medical report setting out their opinion in relation to Fidelma’s prognosis and determine whether the accident caused the symptoms she complains of and whether she is or was suffering from PTSD.


LegalEagleStar , Wednesday , 16th February , 2011

I Was Left Out of My Father’s Will !

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Q.  I am in a state of shock. I have just discovered that my late father – who was a widower – has left me out of his will. I have one other sibling, a brother, to whom everything was left. When I spoke to my brother – the sole executor and beneficiary under the will – he just shrugged his shoulders. I think it is so unfair. Is there anything I can do?


A.  Yes there is. Under Section 117 of the Succession Act 1965 an application can be made to the Court by a child of a person who has made a will and if the Court feels that the person who made the will has failed in his/her moral duty to make proper provision for that child in accordance with his/her means, whether by will or otherwise, the Court may order that such provision shall be made for the child out of the estate as the Court thinks just.

The matter will be considered from the point of view of a prudent and just parent, taking into account the position of each of the children of the person making the will and any other circumstances which the Court believes to be of assistance.

Not every application under Section 117 will be successful and you cannot bring an application where everything is left to the surviving spouse and that surviving spouse is your mother or father.  The duty can also be discharged by gifts or settlements made by the deceased during his/her lifetime to the child in question

In the present circumstances you should consult with a Solicitor sooner rather than later as there is a time limit. The application has to be made within six months of the Grant issuing in your late father’s estate.

Incidentally there is no obligation on your brother as executor to notify you that you can apply to Court in this regard.


LegalEagleStar ,  Tuesday,  8th February ,  2011

Written by LegalEagleStar

February 8, 2011 at 3:17 pm

I’m a Father on Social Welfare and my Ex is bringing me to Court.

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A dad with his son.

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Q: My ex-girlfriend is bringing me to the District Court next month for maintenance for my 6 month old son. I am on social welfare and feel I shouldn’t have to pay her anything as she has a part-time job and also still lives with her parents. She hardly lets me see my son and when she does it’s always on her terms. Is there anything I can do to see my son more and will a court make me pay maintenance when I’m on social welfare?

A: Introduction:

The first thing I would recommend you to do, is go to the District Court and bring a custody, access and guardianship application returnable to the District Court for the same day as you ex-girlfriend’s maintenance application. It would be a very common occurrence for all four applications to be heard at the same time; however, you cannot ask for access or custody etc. if you do not have an application before the court.

Custody and GuardianshipPeople associate and confuse the word Guardianship with the word custody all the time but they are very different in Irish law. Married couples automatically gain custody and guardianship rights to their marital children. In relation to unmarried couples, a mother is automatically the sole custodian of her child and, similarly, is sole guardian.Custody essentially relates to where a child lives. Where a married couple separate and end up going to court, very often an order is made for joint custody with day to day care and control to one of the parties. This means that both parties will remain joint custodians but the child will essentially live with one parent and have access to the other. In regard to unmarried couples, an unmarried father must bring an application to court to become a custodian of his child. Guardianship is very important and relates to the decision making process in a child’s life. A  Guardian has a say in where a child lives, goes to school, medical issues etc. Any decision making in a child’s life must be made and agreed to by its guardian/s. Where a dispute arises in regard to a decision, the parties can go to court and a court can decide the issue. This process; however, should not be abused, as many Judges do not like making such decisions where it feels that the parents should be able to agree, for example, where a child will attend school. Many unmarried couples agree that the father should be a guardian to their child and the procedure is very simple as the parents can sign a form to that effect or go to court and do the application on a consent basis. Issues commonly arise where the unmarried parents do not get on or agree and the mother does not want or wish for the father to become a guardian. Although unmarried fathers have limited rights in Ireland and no automatic rights when it comes to their children, they do have a ‘right to apply’ under the Guardianship of Infant’s Act, 1964. Once an application is made in the District Court Office the mother and sole guardian of the child cannot leave the country with the child and not return. Another situation can arise where a mother leaves the country with a child without any court application pending. In this case, an unmarried father can make an application to the court within three months of a mother leaving the country and he is still protected as the child’s ‘habitual residence’ (a term initially introduced by European Law) will remain to be Ireland for the first three months after leaving the country. Once an application is made within the three month period Ireland has the jurisdiction to deal with the matter.

Access in family law, every case and its outcome can vary greatly. Where a couple are married or have been together a long time, access can result in a practically 50/50 basis. Depending on what each party desires and what parties work schedule, commitments are etc. It is desirable, but cannot always happen, that parties agree the access arrangement between themselves as the parties lose that control when they enter a court room and the Judge decides for them. I am limited in the information in this case as I do not know how long the parties were in a relationship before their infant child was born. However, in circumstances where the child is only six months old it would be likely that a child of this age would not have overnight access with the father until he is older. The fact that the father is unemployed and the mother works part-time it would be ideal if the access could take place when the mother was at work and then neither party would be missing out on access to their child. Obviously this depends on the circumstances, for example, what hours the mother works. An issue can also arise where a mother does not feel comfortable leaving their child unattended with the father where there are trust issues or past incidents that would lead to such feelings. A court may order that access be supervised for a period of time for a father to bond with a child or gain trust of the mother. At this stage, with the very limited information I have, I would recommend that the father ask for one or two evenings per week and a Saturday or Sunday for a longer period of time with the child. Depending where the parties live, their relationship in how they get on, the mothers work hours etc. but with the father unemployed at this time he should be relatively flexible in when access can take place.

Maintenance Like everything else maintenance varies from case to case. Where a father is unemployed, any maintenance order that is made by a court will be on the basis that he is unemployed at the time. If he gains employment the maintenance can be increased. In the District Court the parties will fill out a form that is called a ‘statement of means’. This form asks you to fill out, on a weekly basis, your income, expenses, assets, liabilities, any other court orders which you are making payments on and any other person which you are financially liable for.This information allows a court to examine your financial situation and determine what an individual can afford to pay in maintenance payments. I am asked if, since the father is on social welfare, whether he would be liable to maintenance payments for his child. The answer to that is yes. A father is responsible for the upkeep of his child. Maintenance can be paid on a weekly or monthly basis but in the District Court it is more likely to be on a weekly basis. Any maintenance, no matter how small, is very important for a child. Where an individual is in receipt of basic social welfare payments, depending on other liabilities and expenses, a maintenance payment of €30/€40 per week would not be uncommon. The court will examine whether a father lives with his parents or rents a property or has a mortgage to pay. Any other income a person may be in receipt of etc. and as a result the amount could be slightly smaller or bigger. This is why an individual must fill out a statement of means, as it provides the court with an instrument to ease itself in making a decision.


It is always difficult to predict what a court will decide and for that reason I would not imagine giving a prediction. Every case in family law is different and really does depend on the facts and the circumstances the parties find themselves in. Every family law case is decided on the facts that present themselves in the court on that day. A court does not concern itself on what may happen next week or next month and whether a person might get a job or might get a promotion. A court has to decide a case on what is presented to it on the day of the hearing. Access and maintenance, whether brought before a court by themselves or whether they form part of a Judicial Separation or Divorce, are always subject to change. A party can always bring a case back to the courts where circumstances change and the current orders do not work or cannot work or be sustained anymore.

In this case, for the reasons outlined above, I would recommend that the father bring custody, access and guardianship applications so as to afford himself more protection as a father to his child. If a mother is being difficult in regard to access then a court order can be put in place and the father will know exactly what days and times he has with his child. In relation to maintenance, I would always recommend for a father to pay whatever he can afford for the care and upkeep of his child. The amount will clearly vary whether an individual is in full-time employment, part-time employment or unemployed and on social welfare. I would recommend the father in this case to put forward a proposal to his ex-girlfriend in relation to what he could afford to pay but, if this is not agreeable to her, then a court can decide in any event. In an ideal case the parties can agree in advance or on the day of the hearing and the terms of the agreement can be reduced to writing and handed into the court and this becomes the terms of the court order. If either party breach the order, they are in breach of a court order and the other party has that protection and can return to court. If the parties cannot agree to terms then the Judge hearing the case will decide the access arrangements and the appropriate maintenance to be paid for the benefit of the child. In this scenario, the Judge’s decision will form the content of the court order and again if either party breaches it, they are in breach of a court order and the other party can go back to court as a result.

LegalEagleStar ,  Thursday 3rd. February,  2011

Written by LegalEagleStar

February 3, 2011 at 2:37 pm

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