If you are considering making a claim for negligence, there are three points that need to be satisfied in order for any claim to succeed. In the circumstances in which you were injured or otherwise wronged:
- • Did a duty of care exist?
- • Has there has been a breach of that duty?
- • Has damage has resulted from that breach?
Negligence in personal injury
Everyone is familiar with the concept of personal injury; if you suffer injury or have an accident that wasn’t your fault, you can often claim compensation provided you can prove that someone else was to blame. For example, if you were to slip and fall over injuring yourself in a public building, a place of work or anywhere else where people gather, there is typically someone in charge of health and safety. As a result, cleaners and other buildings maintenance staff have strict guidelines to follow. This includes blocking off or clearly signposting wet or dangerous areas. This is the duty of care they owe to users of the area in which they work. If they have failed to do this and you are injured as a result, you may have a right to a claim in negligence and a specialist Personal Injury solicitor can help advise you.
While the fault may be down to an individual, they act as the representative of a company and it would normally be against the company that you would make your claim. Your solicitor can advise you on this process and assist you in collecting the right information. In order for a claim to succeed, you will need to prove that established health and safety procedures were not followed. In serious cases, and in all workplace accidents where death occurs, an official body such as the Health and Safety Executive will carry out a formal investigation.
Most doctors and other medical professionals maintain very high standards of practice, but with medical treatment there is often a risk involved, and thus mishaps do inevitably occur.
Where you, your spouse or child has been injured after receiving medical treatment, you are entitled to an explanation as to what went wrong. The same entitlement applies to people who are children or dependants of a patient who died.
Doctors and other medical professionals have an obvious duty of care. If a breach of this duty has taken place at any time during the injurious medical treatment then compensation may be claimed.
There are a number of medical misdemeanours that can be classified as a breach of duty of care, which usually apply to doctors and surgeons but can also be applied to other professionals such as dentists, midwives and psychiatrists. They include, but are not limited to:
- • Failure to give due warning of the risks involved in the treatment administered
- • Failure to obtain consent to perform an operation
- • Taking insufficient care in performing surgery
- • Delayed referral to specialists
- • Failed or delayed diagnosis of medical problems
- • Prescribing incorrect medication
Clinical Negligence claims differ from their personal injury counterparts in that instead of simply showing that somebody else was to blame for causing an injury, it must be proven through the evidence of specialist medical experts that there were serious errors in the treatment that a competent doctor would not have made, and that these errors played a part in the injury which is being claimed for.
If you believe you have suffered as the result of a breach of duty of care by a medical professional, you should immediately seek the advice of a specialist Clinical Negligence solicitor.
In English law, professional negligence is a subset of the general rules on negligence to cover the situation in which the defendant has represented him or herself as having more than average skills and abilities; in other words, a professional person. Claims against medical professionals are dealt with above, so “professional” in this sense might include solicitors, surveyors, financial advisors, architects, accountants and professional trustees.
As in claims for Personal Injury or Clinical Negligence, a successful claimant will need to demonstrate that he or she was owed a duty of care by the defendant professional, the professional breached the duty of care, and the breach caused a loss to the claimant. It is also worth bearing in mind that there may be separate claims made for breach of contract and/or statutory duty, or in extreme circumstances misrepresentation and even fraud.
The mere fact of an error does not necessarily constitute negligence. The claimant will need to demonstrate that the professional fell below the standards of a reasonably competent practitioner, having regard to the standards normally expected in his or her profession.