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Legal lessons - patients breaks nose in surgery fall

Barristers Michael Salter and Chris Bryden examine the implications of a patient injuring herself in a poorly maintained surgery

Barristers Michael Salter and Chris Bryden examine the implications of a patient injuring herself in a poorly maintained surgery

THE SITUATION

It's been some time since the surgery was redecorated and the place is looking a bit tatty. Some of the fixtures and fittings are in a poor state of repair and we've been meaning to get round to sorting this out. But yesterday a patient tripped over the loose carpet and broke her nose and her glasses. She is talking about seeing a solicitor. What is our position?

THE ANSWER

It seems likely that if the patient brings a claim, she will succeed. Such a claim could be brought based on the common law of negligence. Alternatively it could be brought for a breach of statutory duty under the Occupiers Liability Act 1957 or the Workplace (Health, Safety and Welfare) Regulations 1992 where an employee suffers such an accident.

The practice owes a duty of care to people who come into the premises to take reasonable precautions to ensure that they are safe from harm. This duty applies to patients and staff alike. It can also in some circumstances apply to persons such as trespassers. Failing to take reasonable care amounts to a breach of this duty and renders the practice liable to pay damages for any loss caused. Failing to replace, repair, or take steps to make safe a trip hazard such as a loose carpet, particularly where it is known to be hazardous, is likely to breach the duty of care.

Occupiers of premises also owe a statutory duty under the Occupiers Liability Act 1957. This duty is known as the "common duty of care" and arises in respect of all "visitors". Again this includes staff, patients, and persons such as deliverymen. The duty is to take such care as is reasonable in all the circumstances to see that visitors will be reasonably safe. Once again it appears that the practice would likely be liable in these circumstances.

Liability may also arise under the Health and Safety Regulations if a worker suffers a similar accident. These regulations cover failure to take reasonably practicable steps to ensure that the floor is kept free from obstructions and from any article which may cause a person to slip, trip or fall. This is only relevant should a member of staff suffer the accident, rather than a patient.

It is essential that any slipping or tripping hazards are dealt with and that reasonable steps are taken to ensure that patients and workers are reasonably safe. This may include warning signs, preventative measures (repairing and maintaining carpets etc) or temporary barriers cordoning off the affected area. The duty of care is discharged by taking reasonable steps, and in such circumstances liability will not be established.

If you receive a "letter before claim" from a solicitor, setting out the details of the accident and claiming compensation, ensure that it is passed to your insurer without delay. Damages for personal injury for a broken nose, and for broken glasses, might be in the region of £2-4,000 - or more if the injury is more severe. If the patient is found to have contributed to her misfortune by her own negligence (by failing to take reasonable steps to ensure her own safety) this award may be reduced proportionately.

Michael Salter and Chris Bryden are barristers at 2 Gray's Inn Square Chambers: www.2gis.co.uk Legal points are provided for information and discussion only and are given without obligation. For specific legal advice consult your solicitor

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