Lawyers expect surge of Covid lawsuits from Leaving Cert students and bereaved families

This article was written by Sean O’Driscoll, journalist and was published in the Irish Daily Mail on 14 May 2020.

There ‘aren’t enough courts in the country’ to deal with the legal fallout from the Leaving Cert chaos, a top lawyer has warned.

The comments come as solicitors told the Irish Daily Mail they are expecting a major surge in coronavirus claims from bereaved families and infected patients.

Relatives of loved ones who have died in nursing homes, patients awaiting vital but cancelled surgery operations, infected healthcare staff and workers in unsafe offices and building sites are just some of the issues raised with them.

Solicitors are expecting a major surge in coronavirus claims from bereaved families and infected patients.

Another solicitor said he has already advised a large number of health workers and patients, including an 86-year-old cancer victim who cannot get an appointment until September.

One lobby group seeking insurance reform is braced for Covid-19 claims and has urged lawyers and doctors to act responsibly in the face of some expected opportunistic legal cases.

Robert Bourke, a partner and owner of HOMS Assist Solicitors in Cork, Limerick and Dublin, said he expects a surge in lawsuits relating to nursing homes and residential centres.

A surge in lawsuits relating to nursing homes and residential centres is expected.

He added that it was ‘outrageous’ that 26 people have died in one Leinster nursing home.

The HSE took over the home last month when ten people died, and the death toll has mounted since, it has emerged in the Dáil.

Mr Bourke said: ‘There seems to be a lack of cohesion between the HSE and the nursing homes.’ He added: ‘Nursing Homes Ireland asked for help in February and a protocol wasn’t agreed until April 4, and this for the most vulnerable people in society. Care centres were not included in the 2008 national pandemic plan so there will be litigation from those who survived the coronavirus and the families of those who didn’t.

Robert Bourke, a partner and owner of HOMS Assist Solicitors in Cork, Limerick and Dublin, said there has been queries from people who contracted coronavirus in a hospital itself.

And Mr Bourke said his firm is getting a huge number of questions from hospital patients and their families. ‘We’re getting inquiries from people denied access to healthcare – both private and public. It’s bizarre that they cannot get appointments when the hospitals are empty,’ he said.

One clients is an 86-year-old man with prostate cancer, and Mr Bourke said: ‘He had an appointment with an oncologist in April and was told that the earliest he can get an appointment is September. Cancer doesn’t take a holiday over the summer.’ The senior lawyer has other cases involving healthcare workers and employees who were put at risk.

He said: ‘You have cases where facemasks and other protection equipment was locked in a closet and rationed out, and employees were told to take their protective equipment home and wash it.’

One solicitor said there aren’t enough courts in Ireland to deal with the litigation that will follow from the predicted Leaving Cert system, not to mention employer cases.

You also have cases where people are asking why their father died in a hospital when the hospital was not at capacity.’ Mr Bourke added that there was a smaller amount of queries from people who contracted coronavirus in a hospital itself.

Liam Moloney, a solicitor specialising in employment and personal injury, said he expects a surge of Leaving Cert litigation.

He said: ‘The Department of Education has said that students cannot engage with teachers on their predicted grades. Well, the teachers have an obligation under law to engage with them.’ The department recently said students can accept a ‘predicted’ Leaving Cert result, but would also be allowed to sit State exams, at a later date, if that is their wish. But Mr Moloney pointed out that a case involving the former justice minister Alan Shatter had established that the State has a duty to engage with someone before making a life-altering judgment about them. In Mr Shatter’s case, there was a damning report referring to him that forced him out of government at the time. A court later ruled that the report had been drafted without giving Mr Shatter an opportunity to respond.

Mr Moloney said that ruling had set a legal precedent that could be used by Leaving Cert students, especially in cases where a lower grade had an affect on a person’s life plans. ‘You now have teachers sitting as judges and there are any number of cases to say that shouldn’t happen,’ he said.

If a teacher then says, “Well you were absent 18 days since January”, a student can then say there was a family bereavement or they had an illness. There are also issues of bias. Teachers are being placed in a very difficult situation and many of them don’t want to be in that situation.’ Peter Boland, director of the Alliance for Insurance Reform, said any new government must reform the law to protect employers from opportunist claims. ‘In recent years, we have been moving towards a situation where the courts expect employers and organisers of events to have an absolute duty of care to people, regardless of how careful the employers are,’ he said.

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