The legal definition of medical negligence is conduct falling below the standard of a reasonably competent professional professing to have that skill. This means that to claim negligence you must prove the treatment received fell below the accepted level of any responsible group of professionals in the same speciality. For example, if the negligence claim is against a hospital consultant, they must have done (or omitted to do) something that no other reasonable consultant would have done.
A medical professional owes the patient a duty of care to act in their best interests. Occasionally, a medical professional will make a mistake resulting in a tragic outcome. If a reasonable body of medical opinion would concur that they would have made a similar decision, then there will be no negligence. If a reasonably body of medical opinion agrees that the action taken was not of a reasonable standard, then there has been negligence. If this negligence causes the patient an injury then there is a medical negligence claim to pursue.
There are many types of medical negligence cases which occur because the medical professional has provided substandard care, for example:
- GP negligence – if the GP fails to diagnose a patient properly, administers the incorrect medication or fails to promptly or appropriately refer a patient and, as a result, the patient’s condition deteriorates.
- Hospital negligence – if the hospital provides substandard care to an inpatient or outpatient, or during surgery, which results in injury and/or delayed recovery.
- Birth injury – where the correct and proper procedures are not followed and this results in an injury to mother or baby.
- Dental negligence – where a dentist provides substandard treatment resulting in injury or deterioration in the health of the patient’s teeth/gums.
Medical negligence claims can arise out of many circumstances where a medical professional has breached the duty of care owed to a patient. Negligent treatment includes a mistake being made by the professional whilst carrying out the treatment, such as carrying out an operation incorrectly; an omission being made by the professional, such as failing to diagnose a condition; or failure to obtain full and appropriate consent and warn of potential risks and side effects of treatment.
This is a complex area of law which requires specialist advice. We offer an initial free appointment where one of our dedicated team can take details and advise you further. Your mother has three years from the date of the potential negligent treatment to bring a claim against the hospital.
(Rachel Davis - 21/03/18)
Most of the claims we handle are on a ‘No Win No Fee’ agreement which means that you will only have to pay a percentage of our costs if your claim is successful and you are awarded compensation. At the end of a successful claim, we will recover the majority of your legal costs from your opponent. Any costs we cannot recover will be deducted from your compensation, capped at a maximum of 25% of your compensation award. We will also take out a legal expenses insurance policy on your behalf, which covers our legal fees and costs if your claim is unsuccessful.
(Rachel Davis - 21/03/18)
to be distressed and was rushed out of the room and placed in resusitaire. Shortly afterwards we were told that the baby was well and we had nothing to worry about. We brought the baby home and although she seemed lethargic, we were first time parents and didn’t really notice anything different. As she grew older we were concerned about some aspects of her development but again we were told she was a ‘slow learner’. She is now just over 3 and half and she has been diagnosed with a brachial plexus injury and cerebral palsy. We have now been told that it is likely that this injury occurred during her birth. It is now over 3 years since our daughter was born. Is it too late to make a claim? How do we get started?
Although there is generally a limitation period of three years from the date of the injury or the date of knowledge, whichever occurred later, that three year limitation period does not apply in the case of a child. In the case of a child the limitation period is still three years but it does not start to run until the child is 18. In other words, your daughter will have until her 21st birthday in order to pursue her claim. Limitation period will expire on her 21st birthday.
To get started with the claim is not a complicated matter. You will need to select a specialist solicitor who has experience in cerebral palsy cases and in particular to birth injuries. The Solicitor instructed will then obtain the medical notes from the Hospital and the GP and consider these notes in order to study the circumstances surrounding your daughter’s birth. All of the medical notes should be available and therefore it would be quite easy for the solicitor to check whether there was any breach of duty or fault on the part of the midwife and the hospital at the time of your daughter’s birth. It will also be necessary to establish that the brachial plexus injury and the cerebral palsy arose as a result of such breach of duty.
In cases such as your daughter’s, a number of medical experts will need to be instructed but the solicitor will look after all of this. If it can be established that the midwife was in any way at fault during the birth of your daughter and it was that fault that gave rise to your daughter’s current injury/disability then there will be a claim. Your solicitor will write a letter of claim to the hospital and start off the claim.
If a claim is established and your daughter is successful then damages will be recoverable for all of her disabilities. If it is possible to get an early admission of liability from the hospital for your daughter’s injuries then it should be possible for your solicitors to obtain substantial interim payments before the claim is settled in order to provide your daughter with proper rehabilitation, support and any medical treatment that she may require.
Because your daughter is still very young it is unlikely that this claim will settle for a further period of time of around another eight years or so. In the meantime, as we say, interim payments will be made available to enable her to have a quality level of rehabilitation and provide for all of her needs.
We offer a free consultation for claims such as this and if you would like to discuss the matter further please do get in touch with us.
(Yasmin Ameer - 06.12.17)
...What types of funding is available in order to help?
Personal injury claims can be funded in a number of ways – all of which are designed to prevent the claimant as far as possible from losing money.
Most Personal Injury claims are funded by a Conditional Fee Arrangement (CFA), which is more commonly known as a “no win no fee” agreement. In their simplest form, these agreements basically mean that you would not be required to pay any legal fees unless you win your case. However, similarly if you are to lose, you may be required to pay your opponents costs. For this reason, we often recommend that you also obtain After The Event Insurance (ATE). This type of insurance will cover you for any costs that you may incur and is normally taken out alongside the CFA.
It may be that you already have some sort of insurance policy in place already; this is known as Before The Event Insurance (BTE). If this is the case, then generally there is no need to enter into a CFA as the insurance will cover the costs of both sides.
There is also the potential for some cases to be eligible for public funding known as Legal Aid. However this is generally for clinical negligence claims and the case must comply with strict funding criteria.
It is important that you discuss all potential funding options with your solicitor before a claim is issued - this will ensure that you have a full understanding of what is involved and are aware of any associated risks.
For more information, please do not hesitate to contact a member of our team.
(Yasmin Ameer - 06.12.17)
... started to show signs of delayed development. My sister tells me that when her baby was born she was a blue baby and was displaying some very disturbing signs such as gurgling noises. My sister is now thinking her baby suffered some injury at birth because of the delay in delivery. What should she do?
If your sister suspects that there might have been an accident at birth, or that your niece suffered an injury because of a delay in delivering her, she should speak to a solicitor. The solicitor will request all your sister’s medical notes and the baby’s notes from the hospital and check the circumstances surrounding the birth. If the indications are that the baby was in distress prior to the birth, and the delay in delivery caused injury, then your niece would have a claim in damages if it can be proved that her delayed development is as a result of the hospital’s breach of duty.
The solicitor will check the medical notes and recorded information surrounding the birth to get an idea as to whether the hospital acted negligently. If the advice is that there is fault on the part of the hospital, which has caused injury to your niece, then she will have a claim which should be investigated.
Your sister should consider very carefully which solicitor she instructs. Medical negligence claims, particularly birth injuries, are a very specialised area of the law relating to injury and therefore the advice of an experienced solicitor should be sought. Solicitors who specialise in medical negligence claims belong to the Law Society’s Clinical Negligence Panel of Solicitors.
At Nockolds we have an experienced team who specialise in birth injury work. We are members of the Law Society’s Clinical Negligence Panel and various other professional groups that have an interest in birth injuries and work with injured children and their families.
... and advice on whether he has a claim.
If it seems clear that the treatment your father received from his GP fell below the standards you would naturally expect, and that this failure led to your father’s condition developing or worsening, then you may be in a position to pursue a medical negligence claim. Claiming compensation isn’t a case of ‘punishing’ the medical practitioner involved, and even a successful claim won’t necessarily result in an apology or a change of medical policy. A successful claim for compensation would recognise the pain and suffering your father has undergone, and ensure that he is compensated for his injury/illness and any financial losses incurred as a result of the negligence he has endured.
A medical practitioner will not be found to be guilty of negligence if it can be shown that most practitioners, in the same circumstances, would have taken the same course of action. Medical negligence claims are usually very complex and we would be happy to arrange a meeting to discuss your father’s situation in further detail.
...I have been told that I have a good claim but I am concerned about how I will pay the legal fees as I have heard these can be expensive and accumulate over a long period of time.
If your claim is successful we can claim the majority of your legal costs from the defendant. We cannot claim the success fee which is payable by you if the claim is successful. This is a percentage uplift on our basic fees. It is set at the outset of the claim and depends on the risks and prospects of succeeding with the claim. This will be deducted from your compensation at the successful conclusion of the claim. We do, however, limit the amount charged in respect of the success fee and this is capped at 25% of your compensation, meaning that your compensation will not be exhausted by legal bills. If your claim is unsuccessful, our fees are not payable.
We are also able to arrange a legal expenses insurance policy to cover the additional expenses of your claim, such as medical reports and court fees, if necessary, and the risk of you having to pay your opponent’s costs should the claim be unsuccessful for any reason. The premium is deferred until the end of the claim and is payable out of your compensation if the claim is successful and is not payable if the claim is unsuccessful.
Our first steps would be to obtain your husband’s medical notes from his GP and the hospital which were recorded in relation to his gall bladder surgery. We would need to establish whether the hospital or its staff failed in their duty of care to your husband.
If the hospital failed to take the appropriate measures to ensure his safety during the surgery there has been a breach. The hospital and its staff are required to take all steps to monitor blood pressure before and during surgery.
Furthermore, by obtaining the medical notes, we would be able to establish exactly what actions, or lack of, were taken by hospital staff prior to your husband’s surgery. From the notes we would hope to establish whether the hospital had acted negligently or in a manner which fell below the standard of care which could have been reasonably expected.
We would also obtain a report from a Medico legal expert. Such report would involve a full assessment of your husband’s treatment and would be used to establish breach of duty.
If it is established that the hospital have been negligent and that their negligence resulted in your husband’s brain injury, which is a likely outcome in the circumstances, you would be able to claim for the care and equipment he will now require in the future as well as costs for his rehabilitation going forward which could see him regain some abilities which he has lost. You will also be able to claim for his pain and suffering as well as any financial losses since the surgery. As your husband will no longer be able to work this could be a substantial sum which will enable you to secure peace of mind over your finances going forward so that you may focus on your husband’s care.
as a result of which he suffered a lack of oxygen to the brain resulting in a brain injury. He is now 3 years old and we want to investigate a claim against the hospital. We have never had a solicitor before except when we bought our house. What should we look for in a solicitor to represent our son?
Medical negligence is very different to ordinary fault based claims. You will initially need a solicitor who is a specialist not only in medical negligence but also someone who has experience in pediatric work. Just as medical negligence is different to other negligence, cases that involve children are different to adult claims. Ask the solicitor the following questions:
- Is the individual solicitor a member of the Law Society's Clinical Negligence Panel?
- How many children's cases involving clinical negligence has the individual solicitor done in the last 3 years?
Brain injuries are very different to other injuries because of the complex way in which the injury affects personality, behaviour, memory and various other aspects of the injured person. This has a huge knock on effect on the injured person’s family. Ask the solicitor:
- Is he/she a brain injury specialist?
- Is he/she a specialist in paediatric brain injury?
- If not a specialist, how many paediatric brain injury cases have they done?
- Are they on Headway’s approved solicitor member list?
- Ask for references. If the solicitor is a specialist they should be happy for you to talk to clients and intermediaries, medical experts and such about their expertise.
The solicitor should be able to explain to you how he/she will be conducting the claim and will confirm whether he/she will be handling the case personally. You should be involved in the whole procedure from start to finish and the solicitor should make sure that you are very much kept informed.
The solicitor should send a summary in writing of matters discussed at the meeting including the funding. If you don’t get the summary in writing ask for it.
If this is your child’s claim it is easy to become emotional. Make sure you take someone with you to the meeting and that person should ask any questions you overlook.
(Rachel Davis - 15.02.2017)
...or I will take this to court. I don’t see the point in agreeing to this. I am not sure what to do.
This stage in a claim is always difficult and the right approach will depend on a number of factors such as:
1. Has the other side (the Defendant) admitted liability for the accident?
2. Have you recovered from your injury or is there a final prognosis
The Civil Procedure Rules which govern the court proceedings does require both parties to consider Alternative Dispute Resolution, which would include mediation or joint settlement meetings. ADR can take many forms but basically means, the parties try to reach an agreement rather than the court conduct a full hearing and give a judgment. If you do not participate in ADR, then there may be consequences (ie not recovering all your legal costs or being ordered to pay some of the Defendant’s costs) if the court ultimately decides you were unreasonable to refuse. If liability is not admitted, then the risks of going to a final court hearing are higher as the Judge will have to decide the Defendant is liable and only then consider the amount of compensation (damages) to award. For many reasons, it is sensible to explore negotiations and by doing so, this does not mean you have to accept a lower or unreasonable offer. It may give the other side the opportunity to increase any offer they have made – you may find them more focused on settlement at a meeting! Your solicitor will advise you on what the court may award and the risks to help you decide what is reasonable and the risks and advantages of continuing with the court process and putting the claim before the Judge. You should be able to discuss your concerns and worries with your solicitor so that you can make an informed decision. Best of luck and I hope the claim is soon resolved successfully.
(Jennie Jones, 05.10.16)
might settle without giving consideration to all the very serious problem my father faces. He has become a very angry man and is unable to concentrate on anything for very long. We don’t believe he will ever return to work as an electrician. In fact we think it would be dangerous for him to do so.
This sounds like a serious injury. Brain injury requires a special expertise on the part of the solicitor. A solicitor with experience in brain injury work will know exactly what expertise will be required to assess your fathers claim competently and to ensure that full and proper compensation is obtained to provide quality of life for your father and support for him and family carers for the rest of his life.
I am assuming that liability has been admitted.
The solicitor should address early rehabilitation and in cases involving brain injury it is not unusual to have a therapy team comprising of a neuro physiotherapist, an occupational therapist, a speech and language therapist if there is that need and a clinical neuropsychologist. Sadly one of the consequences of brain injury could be disinhibited behaviour and anger management. Proper rehabilitation should be able to help your father manage to some extent the problems and to help the family understand the problem. In your fathers case it would appear that the clinical neuropsychologists input will be key to address his anger management and other neuropsychological problems. The rehabilitation will address the management of your fathers disabilities, structure his social life, provide support for him and the family carers and provide a structure within which he could live a fulfilling life for the remainder of his days. All this will be costed in the claim and included in his compensation.
A solicitor with experience in brain injury work will know good tried and tested experts to help quantify the claim. So, there will be an expert neuropsychologist, neuro physiotherapist, Occupational therapist and so on. You say that your father is unlikely to work as an electrician again. You may need an employment expert in that case. An experienced solicitor would be able to explain all this to your mother and remember that if your mother is happy with you accompanying her, you and your sister could go with her and put any questions you have to the solicitor. Any solicitor should be able to answer your questions fully and honestly. Check to see if he or she is experienced by asking how many brain injury cases they have handled and whether they would be happy for you to take up a reference in relation to their ability.
I hope this is helpful. I am happy to answer any other questions you may have.
(Jennie Jones - 24.08.16)
doesn’t have any wheelchair access. Can I get any financial assistance to help as his claim progresses?
Provided that someone was at fault and caused the accident in which your son suffered this unfortunate accident your solicitor should be able to recover early interim payments to provide for all your sons immediate needs. The courts are generous in providing substantial payments in cases like your sons for accommodation and necessary adaptions. Obviously your son will have other needs such as adapted motor vehicle that is suitable and acceptable, wheelchairs, hoists and so on. I see that you and your husband are in full time employment so your son will need support workers to provide care. As solicitors specialising in serious injury work we do not encourage you as parents to assume carers roles even if you are not working and you should have support that provides this care. Your son will want you and need you to be there for him as mum and dad and you cant be that if you are weighed down with the carers role. So good quality care should be provided with the help of an early interim payment.
Your son will also need rehabilitation and various therapies. The cost of all this should be covered by a good interim payment that should be made available as soon as possible and before your son comes home. A good experienced solicitor should be able to get this in place for you. We have recently recovered over £1,000,000 by way of an interim payment to pay for accommodation and care for a client .
(Jennie Jones - 24.08.16)
This will all depend on what happened and the type of car park in question. If the car park is on the land owned or occupied by the event organiser, then the Occupier’s Liability Act applies and they have a duty to take steps that are reasonable in the circumstances to avoid injury. If there was a dangerous pothole or a problem with a fence which left a sharp, protruding hazard then the organiser may be responsible if reasonable steps could have been taken to prevent the injury.
Where an incident may involve cars or vehicles driven by other participants, matters can become more complicated. If all parties are insured, then the insurance companies will generally deal with the claim and consider whether either of the drivers have been negligent. Matters will become more complicated if either party is not insured. In this situation it would be sensible to take advice on the specific details of the incident.
This weekend I entered an Obstacle Competitor Race. I was asked to sign a disclaimer form. How ‘safe’ is the disclaimer that I sign before this type of event? I know I have signed these before at triathlons and similar events.
Participants are often asked to sign Disclaimers before embarking on extreme sports or other potentially risky activities. The Disclaimers can often be wide and seek to exclude responsibility or liability for any injury which arises. The argument is that you are volunteering and willingly participating in the activity and therefore should accept the risk. Under the Unfair Contract Terms Act 1977, it is not permitted to exclude any liability for personal injury caused by negligence. It means, therefore that if the injury is caused because of the organisers failure to consider and minimise risks, or take sensible safety precautions, then they will be held liable for the injury and may face a claim for compensation which would generally be met by their Public Liability Insurers.
Given the nature of the activities, the organisers cannot avoid all risks. For many that is the thrill of participating in the activity! Common sense and taking reasonable and sensible precautions is really at the heart of the responsibility owed by organisers to the participants. A Disclaimer can seek to clarify the risks that are being accepted by the participants, but will still be bound by the law which prevents any unfair contract terms.
As a cyclist, you would owe the same duty of care as any other individual in that your actions or omissions should not cause an injury to your ‘neighbour’. The accident you describe clearly involves a number of people and each will hold a degree of responsibility. The spectator themselves have perhaps not acted as carefully as they should in stepping out when it was not safe to do so. The event organisers may be responsible if the spectator and race area should have been clearly demarcated. If this was a large event, such as the Tour de France, arguably barriers should be erected where large numbers of spectators would gather. At local events this is unlikely to be considered necessary or reasonable.
If spectators are gathering, it may be foreseeable to the organisers that a collision could occur and it may be argued that stewards or some other control should have been exercised.
The other cyclists involved may not be paying sufficient care and attention and depending on the circumstances some responsibility may also lie with them.
In terms of your own liability, this will depend on whether you were cycling in a competent manner. If a reasonable competent cyclist would have acted in the same way or been unable to avoid the collision, then it is likely the incident would be seen as an accident in terms of your involvement. If you were cycling dangerously, or possibly going too fast given the nature of the course or that part of the course, then potentially it could be argued that you had been negligent.
It is important to remember that a pedestrian/cyclist and cyclist/cyclist accidents rarely result in injury claims. Some cycle clubs offer public liability insurance as part of the membership benefits. Otherwise it is unlikely that an individual would be insured. Anyone seeking to make a claim would therefore need to be confident that the individual involved would have the financial means to pay any compensation and legal costs. This often means that claims are not financially viable. I would suggest that you make a note of the incident whilst it is fresh in your mind and draw a map of the course, as far as you can remember to record the events. It may also be useful to gather names and addresses of witnesses such as other participants who could provide further information if this became necessary. I would also contact the event organisers and ensure that the incident has been logged fully and an accident report made.
Should you need any further advice, then please contact me at any point.
... information about what measures the school should be taking to ensure the safety of my child.
Schools are responsible for ensuring the safety of children whilst at school and this is particularly significant during sports activities. All sport carries inherent risk and it is important that these risks are explained carefully to children and parents to ensure they are fully informed before taking part.
Schools and other organisers of sporting activities are responsible for taking all reasonable precautions to reduce the risk of an injury occurring, and this includes providing proper training and supervision, giving proper instructions and ensuring participants are fully aware of the risks and dangers. If proper safety measures have not been taken and activities have been poorly planned or supervised, the organiser may be held to be negligent and therefore liable for any resulting injury.
Particular measures to be taken into account where children are involved include ensuring adequate supervision during the game taking into account the number playing and age groups involved, and considering whether players are appropriately grouped in terms of age, skill and size.
Of course everyone is expected to take some degree of care for their own safety, and children must ensure they play the game as safely as possible and without putting other players at risk. Children cannot be expected to be as vigilant as adults, however, and the younger the child, the greater the duty is on the school.
(Jennie Jones - 09.03.16)
... about making a claim but I don’t know whether to get my own solicitor. Any advice?
Your friend’s insurance company will be contacting you and will put you in touch with one of their claims teams or a firms of solicitors they have agreed to put on their panel or list. You will instruct them but they will generally have a set process and will be required to follow a protocol agreed with the insurer. Your interests should always come first and on occasions your interests may not align with the insurers or even your friend, as the driver. I would recommend that you have your own solicitor to make sure that you are properly advised. Most firms, like Nockolds, will offer a free consultation and No Win No Fee arrangements. Often the insurer will agree to provide the same cover for legal costs even where you choose your own solicitor. It is important that you find someone you can talk to and who can explain the process and investigate the full impact of the accident and injuries on your life (physically, emotionally and financially). If you would like me to contact you, then please send a private message or email me at firstname.lastname@example.org and I can answer any questions you may have.
(Jennie Jones - 09.03.16)
with the medical evidence that has been obtained or the amount of money my solicitors are suggesting I am entitled to. Is it too late to transfer to new solicitors?
You are entitled to change solicitors at any stage during your claim if you are dissatisfied with the service you are receiving. At Nockolds, we have a dedicated Personal Injury Team and you will be allocated a case handler with experience of your particular type of claim who will provide you with clear and friendly advice.
We can arrange a free initial consultation and then request your file of papers from your previous solicitors, with your consent, and review your case. We will need to consider how your claim is funded and whether any existing legal expenses insurance can be transferred. We will also review the medical evidence to advise you on the value of your claim and whether the settlement proposals are reasonable. We can provide initial advice on a fixed fee basis and, if you decide to instruct us to take over your claim, and we believe you have good prospects of ultimately succeeding with the claim, we will act on a ‘No Win No Fee’ basis to bring your claim to a successful conclusion.
(JSJ - 27.01.16)
I had an operation on my leg which was unsuccessful. Since returning to England, I have had to have the operation re-performed and I have been told that the treatment I received in the French hospital has done more harm than good. Do I have a claim against the hospital in France?
Accidents on holiday are particularly distressing as we are away from home and in unfamiliar surroundings. In this situation, we may be able to pursue a clinical negligence claim against the French hospital under the French legal system. To succeed with your claim, we will need to prove that the treatment you received was negligent and below the standard of a reasonably competent surgeon. If necessary, we can obtain advice from a qualified local lawyer to advise on which jurisdiction applies, the time limit for bringing a claim in France and the administrative steps to follow. We will also instruct a French medical expert to provide an opinion on whether the operation and subsequent treatment you received was negligent. In the meantime, it is important to obtain as much evidence as possible, including your holiday booking documentation, copy hospital records, correspondence with the hospitals in both France and England and photographs of your injury.
(JSJ - 27.01.16)
Coroners investigate the who, when, how and why someone died. Often the who and when are clear but the how and why are important issues for loved ones. Coroners investigate and can then hold inquests where a death is unexpected, the cause is not definite or the deceased has not been seen recently by a doctor.
Coroners have a right to summons witnesses and obtain evidence from those involved. In the case of Hillsborough, this is the first time much of the evidence has been publicly examined. If an Inquest is held, then this is a public hearing. Many are held by a Coroner sitting alone, but in some circumstances a Jury will be used such as in the Hillsborough Inquest.
The family of the deceased are allowed to participate and ask questions if they fall within the remit of the Inquest (how and why).
An inquest verdict does not apportion blame, but I have seen Coroners criticise hospitals, government organisations and employers where they have caused or contributed to a death. A number of verdicts are available in an Inquest (such as natural causes, neglect, suicide, misadventure, murder). The Coroner or Jury can also give an open verdict (where no other verdict would be appropriate) or a narrative verdict, where the coroner sets out what happened and makes any appropriate comment. This is often given where the death may be linked to negligence or a mistake in medical care.
The Coroner has statutory powers to obtain information and also to require organisations and in particular government bodies to take action, which is often an important factor for bereaved families.
While an Inquest is distressing for families, many find the process to be helpful where there are unanswered questions. Family members are entitled to have legal representation, which provides support, guidance & legal advice. From first hand experience, the hearing can be very upsetting, and it can be difficult for bereaved families to put forward their views and questions clearly. Having a representative can really help and ensure all the necessary issues are explored and evidence presented and tested.
The families of the Hillsborough victims have waited a long time for this public hearing and examination of the evidence presented to explain what happened on that day. The Jury must now consider whether a decision of unlawful killing is appropriate in the circumstances and in light of the new information that has been presented to the Coroner. Following the Inquest verdict, families can then consider whether any further legal action is appropriate to hold to account those found to be responsible.
(JSJ - 27.01.16)
... Do I have a claim for my injuries and for the damage to my bike? What evidence do I need to provide?
If we can prove that the driver was negligent, for not taking reasonable care for other road users, you will be able to claim compensation for both your injuries and the damage to your bicycle. We can obtain medical evidence to support your claim for your injuries, taking into account your pain and suffering and any psychological effects you may have suffered as a result of the accident. In respect of the damage to your bicycle, you can claim economical repair costs or, alternatively, the pre-accident value of your bicycle. You will need to provide evidence of the cost of the bike and/or repairs. Photographs of both your injuries and the damaged bicycle will also be very useful. If you require any further information, please take a look at our blogs
this week focusing on road safety week.
(RD - 25.11.15)
If you have suffered an injury as a result of a road traffic accident that was not your fault, you may be awarded compensation if we can prove that the other driver was negligent. You can claim compensation for both your injuries and financial losses incurred as a result of the accident. If you wish to proceed with a claim, we can review you case and advise you on the next steps. We will obtain medical evidence in respect of your injuries and any ongoing pain and suffering and advise you as to the amount of compensation you are entitled to.
(RD - 25.11.15)
I am sorry to hear you have had an accident and I hope that you are making a good recovery. If your injuries have been caused by the negligence of your employer, a personal injury claim will be pursued against your employer’s insurers. Employers have insurance cover in place for such liability and any claim will be pursued via your employer’s insurance company. Very few personal injury claims proceed to court as this increases the costs payable by the party at fault. If there is no dispute about who was at fault, or that the accident caused your injuries, the claim is likely to be settled outside of court to avoid the increased legal costs.
If, however, your employers do not admit liability for your accident, and your claim cannot be settled, we will consider how best to proceed. If we consider that you have a good chance of succeeding with your claim, we will advise you to issue court proceedings and ask the court to decide the claim. The court will provide a timetable of steps which must be taken by both parties leading up to the final Hearing and we will provide assistance and guidance throughout each stage. Generally, a claim will be settled prior to a final Hearing but, if not, you will need to attend court and give evidence. The court will hear evidence from both parties and then decide whether your employer is liable and caused your injuries. If you are successful, the court will determine the amount of compensation you should receive for your injuries.
At Nockolds we have a dedicated Personal Injury Team and you will be allocated a case handler with experience of your particular type of claim and who will provide you with friendly and clear advice and guide you through the process step-by-step. We can deal with the claim in whichever way is most convenient for yourself. Depending on the severity of your injury, you may prefer your case handler to conduct your initial appointment at your home or in the hospital if you are unable to attend a meeting at our offices. You may wish a family member or friend to be present at your initial meeting. If you would prefer to deal with your solicitor face-to-face, meetings can be set up at your convenience. Alternatively, we may be able to deal with the claim over the telephone and/or by post and email.
Do the flowers mean they have admitted they are to blame? Can I claim compensation?
Sorry to hear of your accident and I wish you a speedy and complete recovery. Accidents like this are classed as ‘public liability’ incidents. The owner or occupier of the premises owe visitors a duty to ‘to take such care in all the circumstances, as is reasonable, to see that you will be reasonably safe when you enter their premises’. The key point will be determining why you fell. If this was because of a spillage that should have been cleaned, a problem with the flooring or a hazard which caused you to fall, then the shop may be liable for your accident. There is not an automatic entitlement to compensation because you were injured on their premises, but if you fell because of something they did or failed to do, then you may be able to claim compensation for your injury and also your financial out of pocket expenses. Sometimes businesses are concerned that by expressing concern or best wishes, this is seen as an admission of fault or liability. This is not the case. The flowers should be seen as a gesture to say get well soon. If comments were made by the staff: such as – ‘you’re the 10th person who has fallen over that’ or ‘it’s that broken tile that is the problem’, then these will all help to establish that the shop did not take such care in all the circumstances as is reasonable. Ask the shop if they completed an accident report and if you were taken to hospital, a Health & Safety Executive report should also have been made. The best course of action is to then get in touch and come in and speak to me or one of my team and we can look at the particular circumstances and advise you.
I look after my staff and safety is a priority but does that mean anything?
Many thanks for your question which allows me to address comments which are often made whenever I say that I represent injured people. The Association of Personal Injury Lawyers is an organisation which promotes health & safety and fairness in the personal injury arena. They have recently published guidance on some common myths which are often fed by media stories.
Myth 1 - Workers are too ready to claim compensation
The simple truth is that, despite what the press and politicians may claim, workplace claims have halved in the last ten years. Government figures show that there has been a fall from 183,342 claims in 2002/03 to 91,115 in 2012/13.
Despite this the Government is making it even harder for workers to claim compensation after they are injured or made ill because of the negligence of their employer by changing the law in favour of the employer by changing the burden of proof.
Even those who win a case will be affected by additional costs. In the past, the cost of bringing a claim was met by the wrongdoer – now, a significant part of that cost will be borne by the victim. Even if they win, they face a cut in damages of up to 25% to cover legal fees which, in the past would have been paid by the guilty party. So, not only have workplace claims actually fallen, but the process of claiming compensation has become tougher.
Myth 2 - Compensation claims are spiralling out of control
Six out of every seven workers who are injured or made ill through work get no compensation at all. Each year around half a million people are made ill as a result of their job and a further 110,000 are injured. The most common injuries are musculoskeletal disorders such as back injury or repetitive strain injury (RSI), injuries from slips and falls, skin diseases, and deafness. Many people will get better, some will not. Over 25,000 people are forced to give up work every year as a result of work-related injuries or illness. However the number who gain compensation from their employer is around 90,000 a year. A further 20,000 will make a successful claim for industrial injuries benefit, which is a government funded “no fault” scheme. These figures are taken from Government data recorded by the Department of Work and Pensions as every claim is logged with the Dept to enable the Government to recoup certain benefits which are paid to those injured where another party is liable. The system also then records the claims which have resulted in compensation being paid and those discontinued or unsuccessful.
As a society we should be reassured that we have one of the highest work related safety records in the world. Sadly as we saw earlier this week, at the Harford Attachments site in Norfolk where 2 workers lost their lives, accidents can occur. True accidents do not give rise to liability but where something has gone wrong or reasonable steps not taken by an employer, then in those circumstances it is just and fair that compensation be paid to try and ease the damage. Frivilous or dishonest claims should not succeed and all those involved owe a responsibility to ensure these are not pursued. Insurance companies should not settle claims unless satisfied there is potentially a valid claim as ultimately the final step would be for a court to assess the circumstances and decide whether a business is liable. Judges are not inclined to impose unreasonable obligations on business and will assess what has been done or not done against what is expected from a reasonable employer.
I hope that provides you with some reassurance and puts the media report in context, but I am always happy to answer any queries on this or any area of personal injury law.
Link to APIL page - http://www.apil.org.uk/myths-about-compensation
I am only receiving statutory sick pay which is less than 25% my usual wage, so am out of pocket by a considerable amount. I have worked there a long time and I am worried about making a claim against my employer. Do you have any advice?
If you are an employee and the accident happened during the course of your employment, your employer is responsible for your safety at work. This includes providing a safe place of work, assessing your job for any risks, ensuring you have been properly trained and providing appropriate equipment to carry out your work. If your employer is found to have breached this duty of care in any way, they will be responsible for paying you compensation for the damage you have suffered. If you do not receive full sick pay, you will be entitled to recover your loss of earnings incurred as a result of the accident, in addition to any other expenses you have incurred.
Employers have insurance cover in place for such liability and any claim will be pursued via your employer’s insurance company. There are various ways of approaching the claim process and we can discuss with you how you would prefer us to begin the process – we can contact your employer formally by sending a claim notification or informally to explain why you are pursuing a claim so help your relationship going forward. An employer should not treat you differently if you do pursue a claim. As the claim is often handled by their insurers, your day to day managers may have very little input in the claim. We can advise you on whether you have a claim to pursue and you can then decide whether you wish to proceed. The decision is yours and you can consult on of our experts confidentially before you decide to proceed.
I have just been told by the hospital that I am going to need further operations to try and fix the fracture.I am unable to work because of this, and the hospital have informed me that it is likely to take at least nine months before I will be able to use this arm again. Is there anything I can do because this is not only painful, but also causing me significant financial hardship? I recall reading something in the paper about compensation for victims of crime.
There is a government scheme, administered by the Criminal Injuries Compensation Authority. The Scheme is subject to some strict criteria and requirements but in summary it pays compensation to those victims of crime who have suffered an injury, and apply within two years of the incident. If you meet the criteria, then a claim for compensation will be considered.
The Criminal Injuries Compensation Authority will review the circumstances of the claim and a number of other factors to determine whether you are entitled to compensation and if so, the amount of compensation.
Compensation is assessed on a tariff basis, depending on the severity of your injuries.
You are also able to claim certain financial losses such as loss of earnings. These are also subject to strict rules, for example, you have to be unable to work for 26 weeks before you are able to recover loss of earnings. It does sound as if you will unfortunately meet the requirements.
The Scheme does not require the assailant to have been convicted. Providing you have cooperated with the Police and their investigation, you will be able to claim compensation, even if the assailant has not been found or prosecuted.
If you would like to discuss your application then please let me know and I will contact you directly, or alternatively please visit our web page which provides more information.
If you have been injured in an accident that was not your fault, or contracted an illness or disease as a result of someone else’s negligence, you are entitled to make a personal injury claim for compensation for both the pain and suffering that has been caused and any losses and expenses you have incurred as a result of the accident.
You have three years from the date of the accident to make a Personal Injury claim. There are a few exceptions to this rule, for example, if you were a child at the time of the accident, you have three years from the date of your 18th birthday to bring a claim, or if you have suffered an industrial disease in your workplace, you have three years from the date you were aware that you contracted the illness and that this was as a result of someone else’s negligence.
It is difficult to estimate from the outset of a claim how much compensation an injured person will receive until the full extent of the injuries are known and a prognosis can be made. Each case is different. We obtain medical evidence from an independent medical expert, and review the court guidelines which give brackets of compensation for different injuries, to estimate how much compensation is likely to be awarded.
Accidents on holiday are often very distressing as we are away from home and in unfamiliar surroundings.
How the holiday was booked will determine what legal action can be pursued and where.
If the holiday was booked as a package - transport, accommodation and/or activities etc. then you would be able to pursue a claim for compensation for the injury under the English legal system. You would be able to claim compensation for the pain and discomfort experienced by your son and any out of pocket expenses. These can include medical treatment, travel insurance excess and loss of enjoyment of the holiday. The holiday company is held to be responsible for the hotel's actions or failures (e.g. not replacing or repairing the camp bed). When deciding if the hotel is liable for the injuries suffered, the English court will have to consider the requirements and regulations on France to assess what the hotel should have done in the circumstances.
If you booked the holiday independently then any claim is likely to have to be pursued in France under their legal system. Liability for injuries under French law is governed by the Civil Code and the actions of the hotel will be considered against that code. In the past we have helped those injured abroad by pursuing a claim on their behalf in the relevant country and where necessary using a trusted and qualified local lawyer to advise and deal with the local administrative steps.
We have had scenarios where the accommodation has been rented from an English owner, and in the circumstances it may be possible to pursue a claim here as both parties involved are UK residents. There are specific rules which govern which jurisdiction applies and it is important to consider this carefully.
Time limits to pursue claims vary country to country. Under English law it is three years, Spain one year and France it can be 10 years but it is important to obtain advice from a solicitor who is experienced in dealing with foreign accident claims to ensure any claim is made in the most advantageous jurisdiction in the circumstances.
It is important to gather as much evidence as possible - photographs, copies of any reports, police or hospital references, names of those in country or advising remotely via phone or email. It is then vital to make sure you get expert advice on the options available to you.
If your wife is unhappy with the care she is receiving, initially speak to the most senior member of her care team. You should have a named consultant and if not, then ask. If they do not allay your concerns then speak to the Patient Advisory and Liaison Services in the hospital. Their role is to help patients and improve communication where a complaint arises. If you do not get the reassurance you need, then the next step is a written complaint addressed to the hospital Trust. This will trigger a formal complaints process and deadlines for responses. If the hospital does not provide a response within the timescale required (or any agreed extension) or the response is inadequate, then the complaint can be referred to the Parliamentary and Health Service Ombudsman for investigation. Unfortunately the Ombudsman is receiving an increasing number of complaints and is under scrutiny itself!
If the care received is below a reasonable standard and this has caused your wife further problems or delayed recovery, she may have a right to compensation. A medical negligence claim can be considered alongside a complaint. Nockolds offer a free consultant so you can discuss your circumstances and understand your options.
Whether a complaint or a claim is pursued I recommend:
- Making a detailed note of conversations including names and their grade/qualification.
- If there are concerns about equipment or the condition of the hospital etc., take photographs and record the date. Just be mindful of other patients' privacy and dignity.
- Ask questions firmly but politely. I understand this is a frustrating and worrying time and this is not always easy!
We can help at any step of the way whether you need advice on a claim or assistance in presenting a complaint.
No, most local solicitors who specialise in injury and accident claims offer a free consultation. At Nockolds, you will speak to me or one of the experts who handle the claims on a daily basis. There is no call centre and we are here if you want to speak to us in person.
If you do wish to proceed with the claim following the initial consultation, we then explore if you have existing legal expenses insurance (normally with your home insurance). If you do, we liaise with them to secure cover.
If not, we can offer No Win No Fee agreements, just like the dog on the TV! Our agreements are those issued by the Law Society and we take the time to go through the agreement with you so you fully understand. We can arrange insurance and give you the reassurance that we will consider all the options, explain these and work with you to decide on the best one for you. The insurance covers the cost of getting medical reports detailing your injury and any other expenses, which means most clients do not have to fund these expenses as the claim proceeds. It is not a one size fits all approach.
Importantly, it won't cost you more and you will have one contact from start to finish, who will get to know you and help make the process as clear and smooth as possible. All I say is get in touch and we will explain everything.
This type of accident is unfortunately very common. While the owner of the shopping centre cannot stop the rain and give us guaranteed sunshine until October, they do have a duty to ensure the flooring in the centre is safe.
Under the Occupier’s Liability Act 1957, the owner and occupier of the centre is under a legal duty to take reasonable steps which in the circumstances would minimise the risk of injury. Many shopping centres will make sure that the entrance area contains fixed matted flooring, which will collect water from customer’s shoes and therefore minimise the water being transferred to the tiled area. They should also ensure that customers are warned that the tiled floor may be wet. This is usually in the form of yellow warning signs being erected. Whilst most adults would be aware of the risk, this does not always prevent accidents and it is not always possible for vulnerable customers to identify the potential risks. If the floor becomes very wet, then there is an argument the shopping centre should instruct cleaning staff to attend to mop the floor. This will obviously depend on the size of the shopping centre. Each accident will vary and a right to compensation will depend on the particular circumstances. If you have suffered a serious injury, or you will be significantly out of pocket because you need to take time off work or you need help at home, then it is important to obtain advice on your particular accident. There is not an automatic right to compensation, but if the shopping centre owner has not acted sensibly and reasonably, then you may be entitled to claim.
Although the accident occurred whilst you were away from your place of work, you were still undertaking the activity within the course of your employment. It is therefore likely that your employer would be responsible for your safety. You had specifically been asked to visit the property. Your employer is therefore under a duty to ensure you have appropriate equipment to do the job, and that the job has been assessed for any risks or any particular help you may need.
As you were working on the roof, the Working at Height Regulations 2005 would apply, which requires that all work at height is properly planned, supervised and carried out in a manner which is, so far as is reasonably practicable, safe.
You should therefore have been given proper equipment such as a scaffolding tower. It also sounds like you were working on your own. This may be considered unsafe in the circumstances. Whilst your employer would not be liable for the general accident, where an injury occurs and the risk has not been properly considered and minimised, an employer will be liable and required to pay compensation. If you have not received company sick pay, then you would be able to recover your loss of earnings for the time you need to take off work to recover.
If you would like to discuss your particular accident claim in more detail, please send me a private message and we can discuss matters further.
There may be three options open to you. You can explore a medical negligence claim against the Consultant. Medical negligence claims arise where the care and treatment provided by a medical practitioner falls below a reasonably competent standard. If a competent consultant would have been able to diagnose your condition, then you may be able to successfully claim compensation for the Consultant’s negligence.
Negligence claims can arise whether the healthcare is received on a private basis as well as within the NHS.
You are also entitled to put a complaint to the private hospital and the Consultant. They will review the complaint under their complaints procedure and respond.
Depending on the seriousness of the complaint, you may consider reporting the Consultant to the General Medical Council who regulate Doctors. They would explore the Consultant’s fitness to practice and decide whether to investigate matters further.
You may also be able to claim breach of contract as you have paid to receive medical care and attention and you expect that to be of a satisfactory quality. This may enable you to recover the cost of the consultant and any associated tests, etc. The first step would be to obtain medical opinion to confirm that a diagnosis could have been made at that earlier appointment and we are able to assist with this. Where necessary, we can obtain your medical records and instruct an independent medical expert to review and provide an opinion.
We offer a free consultation for medical negligence claims and if you would like to discuss matters further, please get in touch.