Issue 29
December 2007

S.J. Edney solicitors were established in 1996 and are a niche Clinical Negligence and Personal Injury Practice. Seamus Edney is a member of the Action against Victims of Medical Accidents Solicitors Panel, the Law Society’s Clinical Negligence Panel and the Law Society’s Personal Injury Panel. The firm holds a Legal Aid Franchise in Clinical Negligence.

As a firm we are committed to acting for victims of accidents and Seamus Edney has 20 years experience of Clinical Negligence and Personal Injury work.

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s j edney solicitors wish their readers a happy christmas And a prosperous new year

 

Important highlights 2007

2007 has been a very busy year for S J Edney.

We now have an interviewing office at Clarendon House, 52 Cornmarket Street, Oxford OX1 3HF. This will now enable us to see clients who live in Oxfordshire and will save them having to make a journey to our main office in Swindon.

As always, we would arrange to see a potential client at their home if they have a particularly serious injury which prevents them from travelling.  In many cases, accident victims are unable to leave their homes for many weeks as they are recovering from their injuries.  It is much easier if a solicitor visits them.

On a separate note, Seamus Edney's application to become a member of Headway's Solicitors panel was successful. 

Headway is a charity established in 1979 that supports people affected by a brain injury.  They help people understand about brain injury, offer support and run a free information helpline.  They also operate a network of local groups and branches across the UK.  They offer a wide range of services including support networks, community based services, outreach services and respite care. 

Only solicitors with experience of acting for clients with serious brain injuries are allowed onto to their specialist panel.

In addition, Seamus' applications for re-accreditation on AvMA' s solicitors panel and the Law Society' s Clinical Negligence and Personal Injury panels were also successful.

Our membership of these four panels is evidence of our commitment to maintain our expertise in this complicated and difficult area of the law and to ensure that our clients are properly compensated for their injuries.

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PAVEMENT ACCIDENTS

On the 2 October 2007 ITV Thames Valley had a piece on their local news bulletin on whether a compensation culture existed for people who had pavement accidents.

Like with most accidents, there is a perception (especially amongst the media) that a person only has to have an accident and they are automatically entitled to receive significant damages.

Seamus Edney, who was interviewed by ITV tried to explain that this was not the case. There is no automatic right to compensation in this country.

In fact, the odds of a person succeeding with this type of claim are not very high. The insurers of a Highway Authority will almost inevitably fight these cases. They have been helped by the Court of Appeal who have, in a series of cases, taken a very lenient interpretation of their obligations under the Highways Act.

Put shortly, an action brought by a Claimant for a defect measuring under 1 inch will probably lose unless there has been a history of other accidents and complaints. Even if a protrusion is over an inch they can still lose.

The balancing exercise between risk of injury and the cost of repair/maintenance is set out in Sections 41 and 58 of the Highways Act 1980. There is an obligation on the part of the Highway Authority to maintain and repair roads. Liability for the injury may be avoided by them proving:-

“that the authority had taken such care as in all the circumstances was reasonably required to secure that………….. the pavement………… to which the action relates was not dangerous (for pedestrians)”.

The circumstances which the Court is required to take into account include:-

(a) the character of the highway and the traffic reasonably expected to use it;

(b) the standard of maintenance appropriate to such a highway;

(c) the state of repair which a responsible person should expect;

(d) the knowledge of which the Highway Authority had or should reasonably have had, of the dangerous condition in question

In our experience, the insurers of a Highway Authority will probably only accept liability in about 10% of cases before the issue of proceedings. Thereafter, the success rate is higher but these are still difficult cases to win at Court. As Seamus tried to explain to ITV, people who trip or fall over protruding paving stones and are compensated, need first to establish that the Highway Authority are in breach of their statutory duty as set out above.

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SUPERBUG DEATHS

In what must be one of the worse cases of neglect reported by the press in 2007, Maidstone & Tunbridge Wells NHS Trust were criticised by the Healthcare Commission in how they operated their infection control policies at three of their hospitals between August 2004 and September 2006.  This resulted in at least 90 patients dying and more than 1,100 becoming infected with the superbug clostridium difficile (C Diff).  The Commission found ' significant failings' in their infection control, we quote from their report below:-

• patients were treated on open wards instead of in isolation
• a former children' s ward was being used for adults.  It contained an uncleaned shower, one wash basin for 12 beds and beds placed only 30cm (less than a foot) apart
• a shortage of nurses contributed to the spread of the infection ' because they were too rushed to undertake hand hygiene, empty and clean commodes, clean mattresses and equipment properly, and wear aprons and gloves
• high bed occupancy, over 90% at Maidstone and the Kent and Sussex, led to less time for cleaning
• staff used alcohol wipes, which are ineffective against C. Diff spores, to clean commodes instead of soap and water
• old commodes were used despite the Trust agreeing to replace them and setting aside £250,000.00 to do so

What happened to these patients and their families at this Trust is a tragedy.  The lack of rigorous infection control policies at any hospital is unacceptable.  Hospital Managers have known for years that superbugs like C Diff can kill, especially elderly people who are recovering from surgery who in turn will be more vulnerable to infection than normal.  Obvious safeguards to reduce the risk of infections include increasing the space between beds on a ward, appointing a senior employee (preferably at Director level) to monitor infection prevention and control and also implementing a policy on the use of antibiotics which are known to help C Diff thrive.

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WORKPLACE DEATHS

We reproduce below some stats which we have obtained from the Health & Safety Commission with regard to workplace deaths and accidents which make depressing reading:-

241 work-related deaths occurred in 2006-07, a rate of 0.8 fatal injuries per 100,000 workers. In 2005-06 there were 217

30,000 accidents resulted in less serious injuries

46% of fatal injuries to workers were in agriculture and construction areas

19% of fatal injuries were caused by falling from a height in 2006-07

2.7m people now claim incapacity benefit and 600,000 people are added to this each year

90 members of the public were killed in workplace accidents (excluding railway-related incidents)

These figures are appalling. S J Edney is a strong advocate that the Government should be ensuring health and safety at work is given a much higher priority by employers. We now have a beefed up corporate manslaughter offence (this came into force during April 2007) but we are disappointed with a glaring omission from the Bill – the absence of personal liability on the part of the Directors. We believe that every Director should have a positive legal obligation to ensure that their company is complying with health and safety law. This would ensure that the management of companies do not choose to ignore good practice. It would then be easier to prosecute negligent Directors for gross negligence if they ignore this positive duty. We also believe that the HSE should be given much greater resources to perform both its inspection and enforcement duties. A robust and effective health and safety regime would hopefully encourage fewer companies to flout health and safety law and thereby put the lives of their employees at risk.

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--------------STOP PRESS NEWS------------

It was reported in the Times (14.12.2007) that the Government' s Chief Medical Officer had recommended to the Government that all hospitals should be fined if patients contract superbug infections or are harmed by medical errors while in their care.

Setting out a radical plan to tackle the NHS' s record on patient safety, Sir Liam Donaldson said that the taxpayer should not foot the bill for treating patients who have suffered bad or unsafe care.

Instead, NHS hospitals and clinics involved in ' botched surgery', prescribing errors or superbug infections such MRSA or clostridium difficile should be penalised for the extra treatment required.  The proposals, which are to be put before the Health Minister, in his continuing NHS review, are designed to reduce the rate of error and death.  More than 733,000 ' patient safety incidents, occurred during 2006 causing the deaths of more than 3,000 patients.

Safety errors currently cost the NHS an estimated £3.4b in extra treatment and compensation.

 

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This newsletter was produced by S J Edney, solicitors at:
Alexander House, 19 Fleming Way, Swindon, Wiltshire. SN1 2NG
e-mail office@sjedney.co.uk Telephone 01793 600721