Vicarious Liability: when is an employer accountable for the actions of their employees?

Firstly, what is Vicarious Liability?
An employer can be liable for the acts and/or omissions of its ‘Employees’ provided these took place during the course of employment.

Recent Developments
A recent Court of Appeal ruling has dealt with the law relating to vicarious liability and a company’s use of contractors.

The case in question, Barclays Bank PLC v Various Claimants, related to an appeal by Barclays Bank on its liability for sexual assaults that were said to have been committed by a doctor it has contracted to complete medical examinations of its staff. The bank specified the nature, time, place and the examiner and there was therefore some degree of control and knowledge.

Following the death of the doctor the police found evidence of sexual assaults during the examinations.

Various members of staff sought damages from the bank on the basis that they were vicariously liable for the assaults on the basis that the doctor’s work for them was akin to employment. The bank argued that the doctor was self employed as an independent contractor and as such they were not liable for his actions.

The High Court had previously agreed with the Claimants that the bank was vicariously liable and the Court of Appeal upheld that decision. The Court of Appeal discussed the changing nature of work which required a more flexible approach to vicarious liability. Given that the doctor had died and his estate had already been distributed the bank was the only viable entity able to provide compensation which will have, no doubt, had some bearing on the Court’s decision.

Important points for employers
As well as the above case, there have been other recent examples of the Court taking a more flexible approach to find vicarious liability if it considers it fair and just to do so. It is important that all persons working for a company, even those not classically considered ‘employees’ are aware of their obligations.

JNP Legal offer a wide range of legal services. We have offices in Merthyr Tydfil, Nelson and Llanishen. Our offices are open Monday- Friday 9am-5pm with our Merthyr Tydfil office also open between 9am – 12pm on a Saturday for your convenience.

Our qualified solicitors would be more than happy to assist with any legal queries you have.

If you require our assistance with any legal matters please call us on 01685 350421 (Merthyr Tydfil Office) 01443 450561 (Nelson Office) or 02920 763211 (Cardiff Office) or contact us via email on Law@jnplegal.org.

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Thinking of making a holiday sickness claim?

I have recently been abroad to Lanzarote for a week of winter sun. I was really looking forward to a week of relaxation and sun. However, the holiday was not what I expected. It started with a short delay. When I finally arrived at my hotel, which was all inclusive, I was then handed an information card about holiday sickness claims, along with a map and information about trips TUI (formerly known as Thomson) organised. The information card about holiday sickness claims warned me about the companies trying to submit claims for sickness on behalf of British holidaymakers and that I may receive a call about this upon my return to the UK. I did not think anything of this until the second day when my daughter became unwell and subsequently both myself and my husband became unwell with what seemed to be food poisoning. However, upon reporting it to the hotel, it appeared that no-one else had experienced the same symptoms. Unfortunately, I was unwell for the rest of my holiday.

Upon my return, I did some research into holiday sickness claims as it appeared that TUI were very concerned about claims being submitted. When I reported what had happened to the rep, the questions being asked did seem to be aimed at excluding the possibility of a claim being made. What I found on Google was lots of solicitors firms who would be able to investigate a claim of this nature. However, I also came across newspaper articles about fraudulent claims and one particular article by the Guardian was reporting on a couple who had been sent to prison in October 2017 for submitting false claims.

Deborah Briton and her partner Paul Roberts were sent to prison for fraud for 9 months and 15 months respectively for trying to claim £20,000 compensation for 2 holidays where they and Ms Briton’s children allegedly suffered from sickness. Thomson Cook brought private prosecutions against them when they discovered Facebook posts where the couple were talking about how fantastic their holidays were. They were attempting to claim £20,000 in compensation but legal costs were also £28,000. The Judge, David Aubrey QC, commented that this case would be a warning for all those tempted to make claims in the future. A Thomson Cook spokesperson after the hearing also commented that the sentences handed down demonstrated the seriousness of the issue.

The couple’s convictions also came on the day that the Government called for evidence from travel operators as part of a crackdown on these types of claims. There is a talk of a fixed fee regime for legal costs being introduced (which is used in other areas such as road traffic accidents and accidents at work). This is due to the fact that these types of claims have increased by 500% since 2013. Boris Johnson has even commented that the digestive systems of British holidaymakers had “become the most delicate in the world”. The Government’s crackdown has also been welcomed by the Association of British Travel Agents (ABTA) who has stated that the cost of these claims are pushing up the cost of holidays abroad, especially to Spain. The Solicitors Regulation Authority has also issued a guidance note due to the number of fraudulent claims being submitted, which shows how serious the issue is.

However, the above should not put you off making a claim where you have genuinely suffered some form of gastric illness whilst abroad. If you find yourself unwell abroad, it is important that you seek medical advice and report what has happened to your hotel and rep if you have one. However, it is important to heed the above advice and be aware of the concerns surrounding these types of claims.

JNP Legal are leading law specialists who can assist you with all your legal needs.

JNP Legal offer a variety of legal services. Our Merthyr, Nelson & Llanishen office is open Monday to Friday 9am – 5pm and our Merthyr Tydfil Office is open 9am – 12pm every Saturday morning.
If you are unable to attend our offices we would be more than happy to arrange a home appointment, where convenient.
We value our clients and pride ourselves on our ability to offer a first class service.
If you require our assistance with any legal matters please call us on 01685 350421 (Merthyr Tydfil Office) 01443 450561 (Nelson Office) or 02920 763211 (Cardiff Office) or contact us via email on Law@jnplegal.org

Victims of breast surgeon Ian Paterson to be compensated

You may well have read in the news about the former breast surgeon Ian Paterson. Between 1997 and 2011, the disgraced former breast surgeon operated on approximately 750 patients unnecessarily. In some cases, he removed women’s breast or told them that they had cancer when they did not. In May 2017, he was jailed for 15 years after being found guilty of 17 counts of wounding with intent and 3 counts of wounding. His sentence was appealed on the basis that it was ‘unduly lenient’ and it was increased to 20 years imprisonment. The Appeal Judges took into account the fact that Paterson was a in a position of trust, that he had abused his position with vulnerable patients. His treatment of patients was described as “brutal and sustained”. Some commentators have been compared him to the infamous GP Harold Shipman.

Whilst the criminal aspects of the case has now been finalized, there is the matter of the civil claims being brought by the many victims. A compensation fund of £37 million has been set up. Paterson previously worked for private hospital, Spire, along with the NHS. His insurers are also paying into the fund. The victims only have until 30th October 2018 in order to make these claims however. Some victims are reporting physical injuries, as well as psychological injuries.

Private hospital operator Spire has stated that they are determined to learn lessons from what has happened. Whilst this case is unprecedented in scale, it is not unusual for medical treatment and management to go wrong and we here at JNP Legal have the legal expertise to assist you with these sort of matters.

If you have been injured as result of medical negligence by a hospital or GP, we can help you. The first port of call would be to make a written complaint to the hospital or GP; we can do this on your behalf. Once we know their response, it would then be a case of obtaining a report from an independent expert commenting upon the “breach of duty” – for example, the failure to refer for necessary medical tests. Finally, we would then need to link your symptoms to that failure and this is called medical causation.

It is important for potential clients to know that all cases of this nature must be either settled or issued at Court within 3 years. This can be 3 years of the treatment, 3 years of knowledge or unfortunately, 3 years of death. There are different rules in place for a child. Therefore, if you think you have a potential claim, it is important to speak with a solicitor as soon as possible so that this deadline is not missed.

As well as medical negligence, JNP Legal offers a variety of other legal services. Our Nelson office is open Monday to Friday 9am – 5pm and our Merthyr Tydfil Office is open 9am – 5pm Monday to Friday and 9am – 12pm every Saturday morning. We are also able to offer home visits.

If you require our assistance with any legal matters please call us on 01685 350421 (Merthyr Tydfil Office) or 01443 450561 (Nelson Office) or contact us via email on Law@jnplegal.org.

 

 

Time for Change?

By the time that you read this post, the results of the general election will be flooding in and we may even know the next occupants of Number 10. It has been hard to miss the television coverage of the general election. However, what you may have missed is the fact that the last Conservative Government failed to legislate on the proposed changes to personal injury claims in England and Wales. This was due to the fact that Theresa May called a snap election and therefore parliament did not have time to properly debate the changes. In April 2017, MPs voted unanimously to scrap the legislation.

 As a quick reminder, the Government were proposing to make changes to personal injury claims in order to discourage minor, exaggerated and fraudulent claims. This was justified on the basis that motor insurance premiums would be reduced. However, the Government then changed the Discount Rate which is used to calculate lump sum payments for long-term and permanent injuries. Therefore any reduction in insurance premiums was cancelled out by the change to the Discount Rate. Indeed, the Association of British Insurers reported earlier this year that the average insurance premium over the whole of 2016 increased by 9.3%.

 The second proposal was to increase the Small Claims Court limit for all personal injury claims from £1,000 to £5,000. What this effectively meant was that, in order to have a solicitor represent you, your injury would have to be worth at least £5,000. In real terms, this meant that your injury would have to be fairly serious. It would also increase delays within the civil justice system as more people would need to represent themselves. Therefore, for a whiplash injury, Claimants would be deterred from instructing a solicitor as they would be unable recover their legal costs from the Defendant in the event of a successful claim. The Law Society were highly critical of the plans and were fearful that access to justice would be eroded.

 The third proposal was to remove payment for ‘minor’ whiplash injuries. This included the ban on settlement without access to a medical report, a common tactic employed by insurance firms in order to force Claimants to settle their claim earlier and for less. Whilst this may suit some people in order to move on from an accident in a short space of time, in most cases this approach is not appropriate and this is why people require specialist personal injury lawyers in order to advise them on the suitability of any offers made.

Whilst the proposals have been scrapped for now, it is highly likely that they will rear their ugly head again. If a Conservative Government is elected this week, we are highly likely to see these plans set in motion again. However, with Brexit high on the agenda, it may be that these proposals take their time to appear again and it could be subject to a decision by a new Lord Chancellor.

At the time of the decision to scrap these changes Law Society president Roberts Bourns said “we are pleased this decision will provide a chance for a re-think on the misguided whiplash reforms which would deny people access to justice and clog up the court system”.

We will be sure to be keep you updated as to when and if changes are brought in.

Whilst the general election has been hot on the press, the recent events in Manchester and London have touched everyone’s hearts. Our thoughts here at JNP Legal go out to all those caught up in the tragic events.

JNP Legal are leading law specialists who can assist you with all your legal needs.

We are open Monday to Friday, 9am – 5pm in our Merthyr Tydfil and Nelson offices, with a service on Saturday morning 9am – 12pm in our Merthyr office.

Call us on 01685 350421 or 01443 450561 or E-Mail: Law@jnplegal.org.