The fallout from ‘Swing-gate’ is still reverberating around the worlds of politics and law
One year on, the controversy is still having an impact, writes Shane Phelan
USUALLY the impact of a court case is felt when it is being heard, or when the judge or jury gives its verdict.
But this time last year, a legal action which never even made it to a hearing had the whole country talking.
The fallout from then Fine Gael TD Maria Bailey’s personal injuries action against a Dublin hotel after she fell off an indoor swing would be far-reaching, both in the worlds of politics and the law, and the signs are it is not over yet.
‘Swing-gate’ put so-called ‘compo culture’ in the spotlight like never before, and has contributed to changes in the approach taken by solicitors, clients and judges to personal injury complaints.
The timing of the controversy – it occurred in the midst of a local elections campaign – also meant Fine Gael was hit in the ballot box, with the party performing well below expectations. There was little surprise when Ms Bailey was axed from the party’s general election ticket.
Her damages claim may have seemed plausible at first glance. But as is often the case, the devil was in the detail.
Within days of the Irish Independent breaking the story about her case, she had withdrawn the action.
Ms Bailey was on a night out with friends in July 2015 when she went to the Dean Hotel on
Harcourt Street and sat on one of a set of swings in the hallway outside Sophie’s, a rooftop restaurant and bar.
She fell backwards off it while having her picture taken and said she felt “dazed and shocked” after hurting her head, hip and back.
By the following morning she claimed to have a severe pain in her back which prevented her from getting out of bed. She ended up in hospital where, her solicitors said, she was diagnosed with concussion, soft-tissue injuries and contusions, and advised to attend physiotherapy.
The hotel, run by Paddy McKillen Jr’s Press Up Entertainment group, offered to pay her medical expenses.
However, she returned a €600 cheque and requested €20,000 to cover past and future medical expenses.
In a legal filing, Ms Bailey would later list no fewer than 18 different particulars of alleged negligence against the hotel. She claimed the swing should have been supervised, that the swing was a foreseeable risk, that it was fitted in an unsafe and unsecure manner due to the absence of sufficient space or cushioning around it, and that there were no instructions on how to safely use it.
The hotel didn’t hold back in defence papers it filed, alleging she had items in both hands and that if any injury was suffered this was due to her own negligence.
The then TD later admitted in a car-crash interview with RTÉ’s Seán O’Rourke that she had a beer in one hand and was reaching for her friend’s bottle of wine when she fell.
However, what ultimately shot her case down in flames was a claim by her she was not able to run for three months afterwards. In fact, she ran ‘The Bay 10k’ in Dún Laoghaire three weeks later and recorded a respectable time.
All of this emerged against the backdrop of play centres and other small businesses closing because of insurance costs. Instead of using her position as a TD to do something to change claims culture, she had been found out as someone choosing to feed it.
It was a terrible lapse in judgment and left a promising political career in tatters.
A number of personal injuries lawyers spoken to by the Irish Independent say insurance companies were already taking a harder line and defending more cases before the Bailey controversy.
Personal injury settlements and awards were also decreasing following some significant rulings by the Court of Appeal. But most agreed ‘Swing-gate’ was still very significant.
“It was probably the single most important event in the whole controversy over damages and claims and compo culture, for want of a better phrase,” said one prominent personal injuries lawyer.
Speaking on condition of anonymity, the lawyer said that before the controversy there was already a sea change occurring in how claims were being handled, but Ms Bailey’s “ridiculous” damages claim and the focus it put on the area made solicitors “think much longer and harder” about the cases they take on.
“I think it is also important to point out that claimants themselves took a different view,” the lawyer said.
“Claimants themselves were far more reluctant to get themselves tarred by the Maria Bailey brush. They saw the humiliation she experienced.”
‘Swing-gate’ continues to reverberate around Leinster House and, with the insurance crisis still unsolved, measures to deal with claims culture will again be on the agenda once a government is formed.
A bill to put perjury on a statutory footing is likely to be revived, having lapsed when the election was called.
Fianna Fáil has also done much work on a bill which would give the Personal Injuries Assessment Board powers to refer an application to gardaí where it suspects a criminal offence may have been committed, such as fraud.