Clinical Negligence

Publish date

22 December 2016

FAQ: Clinical Negligence & Personal Injury

Q: I have been injured in an accident which was partly my fault.  Does that stop me from claiming compensation?

No.  Many people are reluctant to start a claim because they feel that an accident was their fault when in strict legal terms the accident was in fact caused wholly, or partly, by someone else.

Where two or more people are to blame for an accident, the law does not prevent an injured person from claiming compensation but will apportion blame between the parties and reduce the injured person’s compensation accordingly.  This concept is called contributory negligence.

Take for example, a situation where a pedestrian is hit by a car whilst walking along a country road at night.  Courts place a high burden of responsibility on drivers to reflect the fact that cars are a potentially dangerous weapon and, unless there is evidence to prove that, without warning, the pedestrian suddenly moved into the path of the oncoming vehicle, it is likely that the driver was primarily liable for the accident.  However, the driver could argue that the injured pedestrian contributed to the accident by  wearing dark clothing meaning they were more difficult to see.  If the evidence shows that the pedestrian was partly to blame for the accident, their compensation will be reduced.

An injured person who is found to be, say, 20%to blame for an accident, will receive 80% of the compensation that they would have received had they been blame free.

Q: I feel depressed because I am being harassed at work.  Do I have a personal claim?

Possibly, although stress and harassment claims are notoriously difficult in personal injury litigation.

In order to succeed, you have to prove that your working environment was so bad that it presented a genuine risk of causing illness and that your employer knew, or should have known, that you were exposed to that risk.  You then need to prove that your employer has breached the duty of care that it owes you as an employee.  This might be a failure to address and improve your working environment despite you drawing the problems to their attention.  In addition, you need to prove that you have suffered a recognised psychiatric injury as a result of your employer’s breach of duty.

This is a very complicated area which also gives rise to all manner of employment law issues.  If you believe that you may have been the victim of harassment in the workplace and would like to speak to a lawyer, you should approach a firm like Thomson Snell & Passmore which has specialist teams dealing with both employment and personal injury law.

Personal Injury

Q.  I have recently been injured whilst at work.  Am I able to claim compensation even though I still work for the same employer?

A.  Employers are responsible for ensuring the health, safety and wellbeing of their employees and are legally bound to take action to minimise the risk of injury.  You may have a claim against your employer if you have suffered a physical or psychiatric injury resulting, for example, from your employer providing inadequate training or safety equipment, faulty work equipment or machinery or operating unsafe working practices.  Your employer may also be liable for injury caused by the negligence of another employee.

Remaining an employee of the employer you believe is liable for your injury does not prevent you from claiming compensation.  I have acted for employees in this situation on numerous occasions and most have reported no adverse change in their working environment.  Employers invariably pass claims straight to their insurer which means that, in most cases, colleagues have little or no involvement in the case.

However, in order to claim compensation you will need to allege that your employer or one or more of your colleagues did something wrong.  Such allegations can be emotive and, whilst it should not happen, there is theoretically a risk that a claim could affect the way you are treated or perceived in the workplace, particularly if liability is denied.  If you were treated detrimentally, then that would give rise to all manner of employment law issues, but you may be concerned by the prospect of further litigation.

Any concerns you may have regarding the ramifications of claiming compensation from your employer ought to be discussed when you first consult a solicitor and consideration should be given to whether a claim is sufficiently valuable to make it worthwhile for you.

Q.  I have been injured as a result of a colleague’s actions but my employer insists that the company is not responsible for his actions.  Is that correct?

A.  It depends on the circumstances of the case.  You would need to prove that your colleague committed a wrongful act or omission and that your employer was vicariously liable for what he did.  To establish vicarious liability you need to establish that your colleague:

  1. was an employee of your employer
  2. he was acting in the course of his employment at the time of the wrongful act or omission.

Numerous trials have taken place where these issues have been considered by the courts.  Vicarious liability has been held to apply even in cases where the fellow employee engaged in prohibited or indeed illegal acts.  Nevertheless the law remains complicated.  Each case turns on its facts and a solicitor would need to consider these carefully before advising on whether your employer is liable.

If you would like to discuss the issues detailed above, please contact Oliver Chapman, on 01892 701234 or at Alternatively please visit our clinical negligence and personal injury pages.

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