LegalEagleStar

… a kind of Legal Column

Posts Tagged ‘Personal injury

You Need Your Solicitor

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At Early & Baldwin we divide our work into three separate Departments. Personal Injuries, Family Law and Probate & Conveyancing. Over the years it has actually evolved that way due to our involvement with our clients and their needs. When I qualified in 1980 there was in general, the local solicitor who undertook all types of work. I had been a Director of The Free Legal Advice Centres (FLAC) so had been heavily involved in Family Law. I was in charge of the Ballymun Centre located in the basement of Padraic Pearse Tower, since demolished as part of the Ballymun Regeneration Scheme. Our clients, primarily the women of Ballymun with children, needed us when their husbands abandoned them. There was no civil legal aid available to people and FLAC stood in to help. Disgraceful situation people were in but sure this is Ireland, and it seems we’re used to it ! While they were tough times, it really was the first time in my life that I came face to face with such abject poverty and deprivation. A learning curve I would never forget. After qualifying, I did a lot of Family Law Cases and indeed, continue to do so today. I’ve recently engaged the services of Carol McGuinness, one of the best family lawyers around, to head up our Department.

 

Well then… Why did we open a Department dealing with Personal Injury Law?                In 1987 my law firm partner Kevin Early died. He was primarily involved in the Conveyancing and Probate work, while I looked after Litigation and indeed Family Law. With the introduction of lawyer advertising, which was not previously available, I saw an opportunity to change the direction of the firm from where we were, a general practice, to a more progressive model which could be developed to better meet the needs of our clients. I made it policy that we would not act for Banks, Insurance Companies or indeed large Corporations. I felt that as our clients were ordinary decent people that we owed it to them to act solely for them and not have any conflict of interest. Unlike some of Ireland’s ‘leading’ law firms which it appears, employ ‘Chinese Walls’ to enable them act for all sides !  But I digress.

 

We made some radio ads, employing Emmet Bergin to do the voice overs. He was the sexy Auctioneer in the RTE Sunday night soap Glenroe. The ads worked well and we established a Personal Injury Law Firm. This Firm took on the cases of the ‘little guy’. There was a great buzz in the Office. We all pulled together and engaged with our clients. We saw people at the lowest point in their lives having suffered in an accident. Many lost limbs or had disfiguring injuries.  We came into contact with mental health issues and depression. All of life flashed before us and we felt job satisfaction like never before.

 

All this continued for a number of years until our Government, after lobbying from the Insurance Industry, brought in PIAB, the Injuries Board to take our work away and take it out of the hands of lawyers. It seems they only felt that Big Corporates should avail of lawyers, not the man/woman in the street. Even the Law Society were not happy with our Firm. Their Director General personally told me that they ‘didn’t act for me’. Tough times followed but eventually the Courts pointed out the error of their ways to the Government who couldn’t Ban Lawyers from Personal Injury Cases. The injuries Board continues but we can take our cases to the Courts once we deal with the formalities, should it be appropriate.

Well, as a result, we now have a Personal Injury Department. Excellent people I work with and great clients as before.

 

LegalEagleStar , Wednesday 26th. July 2017.

 

 

Written by LegalEagleStar

July 26, 2017 at 4:22 pm

Will the Citizen have access to the legal profession? Not if the Big Corporations have any say about it!

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I qualified as a solicitor in 1980. I had no connections in law at all and if it wasn’t for the endeavours of my late father, I couldn’t have pursued my legal studies. He worked hard to provide me with an education and without him and the support of my mother, I’d never have succeeded.

For the previous couple of years or so before qualifying, I had been influenced by Inge Clissmann and Aedan McGovern, both barristers and now Senior Counsel. Inge had got me involved with FLAC, the Free Legal Advice Centres which was run by law students who represented in Court, members of the public who couldn’t afford access to justice. Inge introduced me to the Ballymun Centre located in the basement of Padraig Pearse Tower, long since demolished. There we mainly dealt with family law issues and quite simply, we were overrun with the work. Overrun and indeed overawed. It has left an indelible impression upon me to this day. With little or nothing, the parents we dealt with, raised their families in the most trying of circumstances. At the end of the night, after seeing all those needing help, Inge would insist we retired to the Towers Pub to have a drink, one drink, so as to encourage those we had met to see that we were no different from them and could empathise with them. She was all too aware that lawyers were thought of as elitist and she was doing her part in showing everyone that we were not. She also was teaching us students about our social responsibilities and would not tolerate any bullshit from us. She encouraged talk and discussion and left her mark on us. I subsequently took over as Director of FLAC in Ballymun some time later. They were hard times but certainly gave us law students a social conscience which remains with us to this day. All this happened before our Government were forced to bring in Civil Legal Aid. During my career I have had the pleasure to act for those who ‘couldn’t afford a lawyer’. Pro bono work as it is now referred to.

 

The other influence on my career was my late father. While he was one of the ‘bosses’ in British Railways he was a solid Trade Unionist. He was also a devoted Roman Catholic with a great social conscience. He worked hard to look after us but instilled in me an outlook where people came first. It’s probably because of his example, that at an early stage after qualifying,  I made a decision to not act for Banks or Insurance Companies because I could not identify with the Profit at the expense of People dictate. I found many of their dealings with people to be disgusting and abhorrent. To this day my attitude has not changed.

 

I was lucky enough to be practising when the Competition Authority actions enabled solicitors to advertise. I took out a full-page in Golden Pages, advertising my Personal Injury Law Firm as well as having regular adverts air on RTE Radio. My firm expanded and I must say, I was delighted with the pro-people stance we took. We were a plaintiff firm, never acting for the defendant Insurance Companies. We were attacking the anti-people establishment and winning. Many other firms followed suit and people were being represented on a no-win no-fee basis. What other way could people access the law? This continued, or should I say was allowed to continue for only a moment in time. The Law Society among other interested groups were unhappy and pressurised the Government into making changes. Subsequently PIAB was formed to be a ‘lawyer free zone’ and were mandated with looking after all the injury cases from now on. Thankfully after come Court cases it is no longer a ‘lawyer-free’ zone but the setting up of The ‘Injuries Board’ has depleted the work carried out by High Street Solicitors, whose clients were people, not corporations. At the same time, the Law Society tightened up their advertising regulations and I was personally instructed to not call Early & Baldwin a Personal Injury Law Firm as this was ‘encouraging’ claims. And we are to this day prohibited from advertising that personal injury law is what we do. All this was done by the State in the interests of injured people we were told. Do not believe a word of it. For once, the lawyers who acted for the working man and woman were bringing their cases to Court and accessing ‘Justice’ for them. The Insurance lobby is very powerful, not unlike the Banks. They have great influence over Government, unlike the citizen who has little or no influence.

 

Currently there is outrage regarding the amounts the Insurance Industry are charging for renewal of motor policies. Us lawyers are of course being blamed by the Industry but many commentators are challenging this assertion. Remember that cases were heard before Juries until Government was lobbied by the Insurers who said that people could not be trusted. Then we had cases heard by Judges alone. This continued until the Insurance Industry said that Judges were awarding too much. Judges were halted and the Injuries Board was put in place to replace them. Now it’s only possible for your case to be heard before a Judge, if you’ve rejected the award made by the Injuries Board. All this change has been lobbied for and achieved by the Insurance Industry for their own benefit, not for the citizen. In fact the changes in the law were designed to deny the citizen access to the law by taking the high street solicitor out of the equation. Meanwhile the Big Law Firms still represent the Insurance Industry is all their guises. All this ‘reform’ of the law should be taken with a grain of salt. What had been achieved by young enthusiastic lawyers in getting access to the law for the ordinary man and woman, has now in effect been severely curtailed. This is quite alarming, but maybe not surprising. With the Corporation Tax obscenities and the control of Government by the Bankers, this is the logical conclusion. In future, they would hope, that access to the law was not for the ordinary citizen but solely the preserve of Big Law for their corporate clientelle.

 

LegalEagleStar Friday , 23rd. September, 2016

 

 

 

 

Written by LegalEagleStar

September 23, 2016 at 7:46 pm

‘To those that have more will be given and to those that have not, even that will be taken away.

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Disparity of rich and poor in Rio de Janeiro

Disparity of rich and poor in Rio de Janeiro (Photo credit: Wikipedia)

Today I signed up a new client. She had the misfortune to practically amputate her leg in an accident. The photos of the injury are disturbing to say the least. She had a smile on her face and was very positive. ‘Sure, it probably saved me from something much worse she said.’ I explained the ‘new’ personal injury process; having to go through the Government Personal Injury Assessment Board before we could properly deal with her case. She just said, ‘I’m leaving it in your hands. Just look after me.’

Sitting here now, I’m saddened that my hands are practically tied at this point in time. Yes, we’ll do our work and make sure we get in the evidence but I cannot be but frustrated that our State has imposed such restrictions on me, a professional in the exercise of my professional work. The Government set up this Injury Scheme in the name of the Citizen, to get rid of those greedy lawyers. Nothing could be further from the truth. The fact that I cannot issue a Writ without first going through the State imposed Scheme, is in my opinion, an abuse of power by the State. All Citizens should be entitled to bring their case to Court. It is their right as far as I am concerned.

The Insurance Federation Advertising Campaign again comes to mind. The way they treat the Citizen is nothing short of disgraceful. The inference being that the Irish people are all chancers. That they are out for what they can get. Your neighbour is making money while you all pay up. I suppose it’s nothing more than the way the State is treating it’s citizens now in all aspects of life. Wasn’t it scripture that informed us…. ‘To those that have more will be given and to those that have not, even that will be taken away.’ Well that seems to sum up Ireland in 2012. One law for the rich and another for the ordinary Citizen. Will it ever change?

LegalEagleStar , Tuesday , 9th. October , 2012

Written by LegalEagleStar

October 9, 2012 at 4:25 pm

The IMF, The Legal Profession and Austerity for The Citizen

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International Monetary Fund's Managing Directo...

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Friday  was the Last  Day of  Term.  Us lawyers breath a collective sigh of relief at this stage, as the months of June and July are usually hectic. Trying to settle cases before the Long Vacation is tough, exhausting work. The Courts now are officially closed until October. While litigation lawyers usually take their vacations in August and September, it is also a very busy period in the office while you try to play catch-up with work and prepare your cases which should be coming on for hearing next term.

After the invariable merriment following last Friday, my mind switched to thinking about, not only next term, but indeed the future of our profession in general. While there has been much talk about the demands of the IMF as regards bringing in their dictatorial sweeping changes to the profession, there’s also been a lot of time spent in the promotion of many ‘Law without a Lawyer’ schemes. Take the much heralded Mediation for example. The Mediator gets an upfront payment and the process is not binding. Well, our clients don’t pay up-front, as most could not afford to do so on the average industrial wage. It is difficult enough to survive with a family in this day and age never mind putting us in funds in advance for our work. Don’t lawyers already mediate? Don’t we settle cases whenever possible? Of course, the Elite have no such problems. But they do live on a different planet from the rest of us mere mortals and have their own unique set of lawyers to act for them.

The Legal Profession not only needs reform but it needs investment in its pursuit of Justice for All. I have no time for the ‘Law without a Lawyer’ Brigade both from within our profession and outside of it. We must as lawyers, use our expertise for the betterment of the Citizen and not allow our clients be charged for a service which is second-rate and run by Insurance Companies, Developers, Bankers etc. who have their own vested interests to protect. In the United States it is common place for property buyers to deal with their Realtors directly and let them handle all conveyancing matters regardless of whether any conflict of interest occurs. They then satisfy themselves with the purchase of  Title Insurance – from their friendly Insurance Company –  which they will rely on should disputes arise at a later stage. This is not the way forward if the purpose is to keep the best interests of the client foremost. It will enrich those who act for the Developers and their Insurance cousins. In England you have licensed conveyancers. They are no substitute for a properly qualified and experienced lawyer. You must insist on a professionally qualified lawyer to act for you, you alone, and have no conflict of interests. Your lawyers must read the title and take all steps necessary to ensure that the title properly vests in you and you alone.  Remember it’s not just the bricks and mortar that you are buying. It is in essence the title to the property that you are spending your hard-earned cash on.

We see the Courts being circumvented in regard to the victims of Institutional abuse. Redress Boards being introduced to look after the victims. It is unfair to the victims that they cannot have their cases processed through our Courts to provide them with the necessary compensation that is rightly theirs. Beware of Government interference in the rights of the Citizen. It is my view, that the interests of the Citizen are being compromised, not those of the offenders. In personal injury cases, Juries were abolished following successful lobbying by the Insurance Industry. So, the Citizen was removed from the process as the Insurance Industry asserted that they could not be trusted to sit on Juries. Sure what would they know about injuries and compensation ! It should be noted that awards increased thereafter. Not satisfied with this outcome our Government, again at the behest of the Insurance Industry, abolished the right of the Citizen to bring his/her case before the Court without first having to submit same to PIAB, or should I say, The Injuries Board. Look at what a simple Google search brings up regarding their sterling service…..

”You can avoid solicitor fees by applying directly to the Injuries Board. Our dedicated team are available 8am-8pm Monday to Friday to help you.

…Well, how professional is that ? Are they qualified lawyers with years of experience running cases day in, day out, before the Courts ? No, and going by their propaganda it’s quite clear they want to avoid solicitors i.e. the experts, at all costs. So do you want their ‘dedicated team’ or do you want an expert to look after your case? You MUST bring your application before them and unless you do so you will be denied your constitutional right to bring your case before our Courts of Justice. Nice one Ms Harney. You cynically undermined the rights of the Citizen, which I’m told you’re very proud of. Isn’t it really nothing more than a cynical attempt by ex-Minister Mary Harney to undermine solicitors and their clients. It was not the interests of the Citizen that was foremost in Minister Mary Haney’s mind, but to create a ‘Lawyer Free Zone’ which would see her Insurance Company friends decide on what the Citizen was awarded. The continuous compliance with the wishes of the Insurance Industry, at the expense of the Citizen, is nothing short of a disgrace. It is no wonder that now, the same Citizen has been forced by ‘Our’ Government into embracing austerity in order to bail out the Developers and the Banks who enjoyed such a close and cosy relationship with our Government Ministers.

Be under no illusion. Reform of the Legal Profession as proposed by the IMF (Bankers) will be used to further expose the Irish Citizens to more ‘Law without a Lawyer’ schemes. It is the legal profession who stand up for the rights of the Citizen not any Bank, Insurance or other such vested interest Groups. It is the right of every Citizen to have access to our Courts to pursue their rights. Are we to deny you, the Citizen such rights? Are the Courts the sole preserve of the Rich and the Elite in our Society? We need investment in our Courts and the way we do business. The Courts are there to protect us from those who hurt, abuse, neglect and victimize us. Those who try to deny the Citizen the protection of the Courts are being nothing short of immoral.

It will be interesting to see how Minister Shatter, himself a solicitor, with his own high-end Firm, and with an acknowledged dislike of the Bar ( The Barristers ) handles the IMF Brief on reform of the Legal Profession. I’d say some interesting times lie ahead.

LegalEagleStar , Wednesday , 3rd. August , 2011

Mary wants to know what a 3rd. Party Notice is ?

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10 car pile up

Image by jaywood_uk via Flickr

Q:    My name is Mary and I was served with something called a 3rd Party Notice today and I don’t really understand what it is? There was a car accident about two years ago where there was a bit of a pile up situation. I stopped at a traffic light and the car behind my car hit me and the car behind that hit him. I think the individual in the third car was injured because if I remember correctly an ambulance was called. The damage to my car was minimal and I never made a claim. Upon reading the documents I was served with today I believe the individual in the third vehicle is suing the man in the second or middle vehicle for personal injuries and some other reliefs and now that man who is called the Defendant is suing me. I’m a bit confused as I stopped safely at the traffic lights and the car behind me, clearly didn’t notice the lights had changed and broke suddenly which it seems caused a domino effect. What do these documents mean and do I have to go to Court?


A:  Mary this is called third party procedure. The Defendant, the man in the second car, believes you to be at fault in the accident and believes you are the correct defendant. What would have occurred so far is that the Plaintiff, the individual in the third car, has brought proceedings against the defendant. The defendant would then have brought a motion to issue and serve a third party notice on you. The Plaintiff did not have to attend this motion unless they wished to add you as a co-defendant and they obviously did not wish to pursue this. Effectively there are now two sets of proceedings in place. The first is between the Plaintiff and Defendant and if that case proceeds and the Defendant is found liable, then the second case between the Defendant and you as the third party takes place. Ultimately, at this point, the Defendant becomes the Plaintiff and you, the third party, become the Defendant. At this point where, we are presuming the Defendant is held liable for the accident, the court will access if all or any of that accident was your fault and a percentage of liability anywhere between 0% and 100% could be apportioned for blame.

What I would advise you to do Mary is contact a solicitor to discuss the matter fully with them and give your full account of the accident as you recall it. I would advise you to do this immediately as you have just ten days from service of the third party notice upon you, which is today, to make an appearance. You can do this yourself if you wish but your instructing solicitor can do this for you also and then they will become the solicitors on record for you and contact the other parties on your behalf to discuss the case.

LegalEagleStar,  Wednesday 20th.  April,  2011.

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April 20, 2011 at 2:33 pm

Are we really the ones with the Brass Neck ? You v. Insurance Co.

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wall of banks

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We’ve all heard the stories about the Mafia and their influence over politicians. Maybe not the Mafia itself but some other equally obnoxious grouping of wealthy gangsters who influence our lives to our detriment. In Ireland today, it is my opinion that the citizen has been targeted by unscrupulous individuals and companies as never before. I suppose the most obvious matter before the people at present is the totally unjust and indeed the scandal of the working man having to pay out of his own pocket to cover the debts of the wealthy gamblers who have bankrupted our country. Well haven’t we been targeted for years in similar ways but made to feel it was us in the wrong? That it was our fault that Big Business was being ripped off by us and not the other way round. That we’re all chancers out to make a quick Buck at the expense of what have been portrayed as seemingly Charitable Institutions. In this particular case, I’m referring to the Insurance Industry.

Our Government scream at us that we need our Banks. That civilisation as we know it will come to an end without them. Bail them out at any cost, and then repeat as necessary. They take a similar view when dealing with an allied industry, The Insurance Companies. It is not too long ago that the Insurance Corporation of Ireland, owned then by AIB , was ‘Bailed Out’ at the taxpayers expense. So bailouts include the Insurance Companies as well as the Banks. Why? Who owns these Insurance Companies? Do we? Is it a national insurance fund set up for our benefit? One would think so but in reality, well, the same people who own and use our Great Banking System. I’m reminded of an Insurance Individual that had retired as the returns on his investment were returning something like less than 60% profit. Post 9/11 he came out of retirement as profits of in excess of 85% were predicted. So, he had retired because he was not happy that his Profits from the Industry were not Huge as had been the case for years.

In Ireland we see on our Television Screens on a regular basis, the sight of You, yes You going on holiday after you’ve been involved in an accident. The voice over from this Insurance Company advertisement tells you in no uncertain terms that you are so doing at the expense of the rest of us. We have the Television Advert where you are seen as having an ever extending nose ! That exaggerated claims are a crime. That you are a terrible person! That You have caused a Claims Culture and that you are fraudulently claiming money from Insurance Companies that you are Not entitled to. Then our Government (enter Mary Harney)  told us that you cannot have big payouts AND low premiums. We were asked if we wanted Large Awards and abnormally High Premiums or if we want ‘normal’ awards and normal premiums. We are told that the Insurance Companies lose money as a result of our actions. The Insurance Companies don’t highlight the extent to which the ‘losses’ are often much smaller than they make out or not real at all. These ‘losses’ are used to justify steep increases in premiums but they don’t take account of the very substantial interest earned on the years premium that you pay up front and on the money put aside to meet claims made now but not paid for three or four years. The Insurance Industry has admitted in the past that the principle reasons for increases in premiums is the fact that Insurance companies ‘re-adjust’ to compensate rate reductions due to competitive pressure over the past number of years. Even this is not the whole truth.

In the past the Insurance industry persuaded the Government that if they abolished Juries, which were made up by You and your neighbours, that they would be able to reduce premiums. The Government followed suit and abolished Juries i.e. your say in what was fair and just. The Judges then assessed awards, not you. Awards went up but never did the Insurance Industry admit that Juries had got it wrong. That Juries had erred on the side of caution and indeed their awards were tending to be on the low side. That they should have been awarding Higher awards. Then they persuaded the Government to deny the citizen the constitutional right to bring a case before the Court at first instance and established the Personal Injuries Assessment Board, PIAB. This initially was openly labelled as a ‘Lawyer free Zone’. PIAB was and is made up by claims personnel recruited mainly from the Insurance Industry. So the citizen was expected to pursue their claims, on their own, denied the services of a lawyer ,the specialist in this area and deal directly with PIAB.  PIAB, remember have the benefit of their own claims handling specialists and indeed lawyers. Again the citizen, the victim, was being denied his/her rights and made to stand alone. Not dissimilar to the citizen standing alone against the Banks and their Building Societies etc.

BUT we are being conned, yet again. All the ‘competitive pressures’ is a smokescreen. You must hand it to the Insurance industry. They have such a brass neck that they don’t even get a red face when exposed. Insurance Companies are in the business of making money. They are there to make a profit for their shareholders. Those shareholders will get out of the Industry unless they get a high return on their investment. They are quite similar to bondholders who invest in Banks to make a profit. Bondholders have become the enemies of the people with talk such as ‘Burn the Bondholders’ but there is no such talk concerning the ‘Shareholders’ who demand high Premiums to satisfy their lust for, Your Money and on a yearly basis.

One of the best devices employed by the Industry has been to divide and conquer. Allow small business to treat everyone as though they are Frauds. And yes, all this propaganda and the millions of Euro spent on advertising has indeed worked well for them. Insurance companies now want us to regard anyone who makes a claim for whiplash injuries to be viewed as a possible fraudster until proved otherwise! They cite the disgraceful cases where ‘chancers’ and indeed criminals have made fraudulent claims. Yes, unfortunately there have been some and I for one would say that nothing short of prosecution and imprisonment would suffice to deal with such criminal behaviour. Such claims have been few and far between despite what you have been told. The use of Solicitors in the past has been an assist to the Courts in weeding out such cases. No solicitor in his right mind will take a case which he/she knows to be false. The Courts would and do throw such cases out. If a solicitor loses a case it is at great personal cost. Not a practise to be encouraged. If on the other hand you are referring to cases which the Insurance Company settles which you are then told is ‘suspicious’ then be aware, be very aware. In my thirty years plus practising personal injury law I have not seen a case been settled where such has been the case. I’m not saying it hasn’t happened but it would be so rare as to be almost negligible in the whole scheme of things. Of course the Insurance Federation will use such instances to their benefit as ‘justification’ for their actions in promoting their ‘Fraudulent Claims Culture’. That of course doesn’t mean that I haven’t heard Solicitors and Claims Assessors making such remarks and on a regular basis. Many cases where it was claimed that the injuries have been exaggerated have in fact seen people end up in great pain and suffering at a later stage. My view is that we can’t allow them to dictate what is fair compensation. They want higher premiums and lower awards. Courts and Judges, if not you serving on a Jury, must be the decider of what is fair in the circumstances of the particular case. A broken arm cannot be the same to an artist as to an office worker and today PIAB decide on what they alone consider proper. Only after PIAB, or should I say ‘The Injuries Board’ which they now call themselves, disposes or releases your claim can your lawyer take the matter over and pursue your claim through the Courts. Justice delayed is justice denied.

Last week I referred to reform of the legal system. I mentioned providing a level playing field. Well The Law Society at the behest of the Government restricted advertising by solicitors, in particularly those providing personal injury services. It was those solicitors, who for the first time in Irish Legal History, brought cases before the courts for people who could not afford to pursue their cases before the Courts. They made the law accessible to the people for the very first time. Law no longer was just for the rich but for you and me. This was done on a No Foal no Fee basis. That has now been outlawed and although some solicitors still take such cases, they do so at the risk of sanction by their professional body. The old saying is very true today:  ‘One law for the Rich and another one for the Poor’.

LegalEagleStar  Wednesday, 13th. April 2011.

Written by LegalEagleStar

April 13, 2011 at 2:38 pm

I’m so Depressed

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Q   I  AM  feeling very depressed at the moment as I am writing this note from my hospital bed.

Last Saturday week I was knocked from my bicycle. I was taken by ambulance here to hospital. I can remember being hit by this car which didn’t stop. There were no witnesses.  Is there anything I can do ?

 

A   FORTUNATELY , Yes. A personal injury solicitor can take instructions from you even as you sit in your hospital bed.

He/she will have your accident fully investigated in order to ascertain the facts before proceeding. Presumably the Gardai would also be involved. If the motorist can be found he/she would be the defendant. If would appear unlikely that the hit and run driver will be found, but don’t distress yourself as the Motor Insurance Bureau of Ireland must now deal with such cases.

 

THE STAR , Friday March 23, 1990

Written by LegalEagleStar

January 11, 2011 at 12:54 pm

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