Kildare barrister seeks end of unfair insurance loophole

A KILDARE barrister is hoping to force an unresolved insurance loophole that saw a client injured in an accident she had zero responsibility for onto the General Election agenda.

Rory de Bruir from Kildare town said Dáil Eireann had failed to implement anything during the lifetime of this government – despite prompting by a former Supreme Court Justice.

“Five years have elapsed and nothing has been done by legislators,” he said. “I’d hoped that the Green Party with Eamonn Ryan as minister for transport would have helped pass an amendment, but no joy,” he added.

“We are well used to insurance companies publicising fraudulent claims or excessive damages for personal injuries sustained in road traffic accidents, but few people know that insurance companies deny compensation to innocent parties when they plead the defence of ‘inevitable accident’”.

In January 2015 a bus in Kildare town crashed into three cars outside the national school on Bride Street after the driver had a brain haemorrhage. Allianz Insurance subsequently refused Mr de Bruir’s client the €30,000 she had been awarded by the Personal Injuries Assessment Board (PIAB) citing the above defence.

The barrister appealed the decision but in the circuit court in Naas in November 2019 the insurance giant cited this defence as ruled on by Justice Frank Clarke in 2005. This 2005 case involved an application to sue Dublin Bus by victims following the fatal Wellington Quay bus crash which was rejected, and the judge in Naas agreed.

'Inevitable Accident'

In 2005 Justice Clarke was tied by a 1998 precedent which declared that a driver’s duty of care to other road users did not include that which he was unaware — like the seizure the 2004 driver suffered.

Back in 2005 Justice Clarke commented that it was “undoubtedly a most unfortunate situation from the point of view of the plaintiffs (the pedestrians hit by the bus) as they were injured through no fault of their own” but went on to point out “a change in the law is, however a matter for parliament”.

In his case, Mr De Bruir’s client was a local mother sitting in her car outside a local school when an unfortunate passing motorist had a fatal brain aneurysm and crashed into her stationary car.

However, despite the former Supreme Court Justice flagging this issue nearly 20 years ago, Mr de Bruir is angry nothing was done about it to change the law in the meantime and says his client suffered substantially because of this lack of action.

“There were approximately 15 persons, mothers and infant pupils on the pavement ready to cross the road, and had this accident occurred a number of minutes later it is likely that there would have been fatalities or serious injuries to mothers and infants,” said Mr de Bruir.

“Why have our legislators not acted to change this law, and is the minister for transport aware of this defence of 'inevitable accident'?” he asked.

“What is the position of the Road Safety Authority in advising all citizens and road users that they are exposed to suffering injuries in cases where insurance companies plead the defence of 'inevitable accident'?

““It was an absolute disgrace that an entirely and utterly innocent party is deprived of compensation."

Campaigning for change, he added: “I believe it essential that all right-thinking persons ask their TD and Senator to indicate their position on this defence of 'inevitable accident', and to take immediate action to have the law amended, by supporting on a cross-party basis a private members bill to abolish the defence of 'inevitable accident' in road traffic accidents. A simple amendment to the Road Traffic Acts abolishing the Defence of 'inevitable accident' in the case of innocent victims in road traffic accidents is what is required,” he concluded.

It is estimated the daily operating profit of Allianz worldwide to be 1,000 times the amount they tried to deny Mr de Bruir’s client.