Proving clinical negligence

Medical negligence is when healthcare providers such as doctors and dentists make mistakes or fail in their duty of care to you, leading to injury or making an existing condition worse.

The purpose of this blog is to set out what is legally required to bring a successful case for clinical negligence.

What is required to bring a successful case of clinical negligence?

In order to establish clinical negligence, also known as medical malpractice, the following three things must generally be proven:

1. Duty of care: The healthcare provider must have owed a duty of care to the patient. This means that there must have been a doctor-patient relationship, and the healthcare provider had a legal obligation to provide care that met the standard of care for their profession.

1. Breach of duty: The healthcare provider must have breached their duty of care by failing to provide care that meets the standard of care for their profession. This means that they must have acted in a way that other competent healthcare providers in their field would not have under similar circumstances.

1. Harm: The patient must have suffered harm as a direct result of the breach of duty. The harm may include physical injury, emotional distress, or financial loss, among others. It is important to note that simply being dissatisfied with the outcome of a medical procedure is not enough to establish negligence.

In addition to these three elements, it is also important to note that in order to establish clinical negligence, it must be shown that the breach of duty caused the harm.

In other words, the harm must have been a direct result of the healthcare provider's breach of duty, and not caused by other factors.

What is a duty of care?

In clinical negligence, a duty of care refers to the legal obligation of healthcare providers to provide care that meets the standard of care for their profession.

This means that healthcare providers have a responsibility to provide care that is reasonable, skilful, and appropriate for the patient's condition.

The duty of care arises from the doctor-patient relationship, and it is established when the healthcare provider agrees to provide care to the patient.

Once the duty of care is established, the healthcare provider is legally obligated to provide care that meets the standard of care for their profession, based on their knowledge, skills, and experience.

The standard of care refers to the level of care that a reasonably competent healthcare provider in the same field would provide under similar circumstances.

This means that healthcare providers must provide care that is in line with the practices and procedures that are widely accepted in their profession.

If a healthcare provider breaches their duty of care by failing to provide care that meets the standard of care for their profession, they may be held liable for any harm or injury that results from their negligence.

This is why it is important for healthcare providers to take their duty of care seriously and to provide care that is safe, appropriate, and meets the needs of their patients.

What is a breach of duty?

In clinical negligence, a breach of duty refers to a healthcare provider's failure to provide care that meets the standard of care for their profession.

The standard of care is the level of care that a reasonably competent healthcare provider in the same field would provide under similar circumstances. If a healthcare provider fails to meet this standard, they may be considered to have breached their duty of care.

A breach of duty can occur in a variety of ways, including:

• Failure to diagnose or misdiagnosis of a medical condition

• Delay in providing appropriate treatment or surgery

• Administering the wrong medication or dosage

• Failing to obtain informed consent from the patient before performing a medical procedure

• Inadequate communication with the patient about their diagnosis, treatment, and potential risks and benefits

• Failure to monitor a patient's condition or respond to changes in their condition

• Improper use of medical equipment or devices

When a breach of duty occurs, it means that the healthcare provider has not provided care that meets the standard of care for their profession, which can result in harm or injury to the patient.

The breach of duty is an essential element in proving clinical negligence, as it is necessary to establish that the healthcare provider failed to meet their legal obligation to provide care that is reasonable, skillful, and appropriate for the patient's condition.

Until the Montgomery case, the leading case in establishing breach of duty in clinical negligence was Bolam v Friern Hospital Management Committee [1957].

The case established the Bolam test, which is a legal standard for determining whether a healthcare provider has breached their duty of care.

The Bolam test states that a healthcare provider will not be found to have breached their duty of care if their actions or decisions are supported by a responsible body of medical opinion, even if there is a body of opinion that disagrees with their actions or decisions.

In Bolam, the plaintiff underwent electroconvulsive therapy (ECT) to treat his mental illness, but he suffered injuries during the procedure.

He claimed that the hospital staff had breached their duty of care by not providing sufficient information about the risks and alternatives of the treatment and for not properly restraining him during the procedure.

The court held that the hospital staff had not breached their duty of care, as their actions were in accordance with the practice accepted as proper by a responsible body of medical opinion.

The Bolam test is still widely used today in determining whether a healthcare provider has breached their duty of care.

It recognizes that healthcare is a complex and evolving field, and that healthcare providers are entitled to use their clinical judgment in making decisions about patient care.

However, the Bolam test does not absolve healthcare providers of all responsibility, as they still have a duty to provide care that is reasonable, skillful, and appropriate for their patients' conditions.

The Montgomery case refers to the landmark legal case of Montgomery v Lanarkshire Health Board (2015). The case established a new legal standard for informed consent in medical treatment, and it has implications for the Bolam test in breach of duty in clinical negligence.

In the Montgomery case, the plaintiff was not informed of the risk of shoulder dystocia during childbirth, which resulted in her child suffering from cerebral palsy.

The court held that the healthcare provider had breached their duty of care by failing to provide the plaintiff with the information she needed to make an informed decision about her treatment.

The Montgomery case established that healthcare providers have a duty to take reasonable care to ensure that their patients are aware of any material risks associated with a proposed treatment.

The court held that the Bolam test should not be applied to the question of whether a healthcare provider has breached their duty to provide adequate information to their patients about the risks and benefits of a proposed treatment.

The Montgomery case therefore means that healthcare providers must provide their patients with the information they need to make informed decisions about their treatment, and that the standard of care is what a reasonable patient in the same circumstances would want to know.

This is a higher standard than the Bolam test, which focuses on the judgment of the medical profession rather than the patient's individual needs and preferences.

Overall, the Montgomery case has significant implications for the Bolam test in breach of duty in clinical negligence, as it recognizes the importance of informed consent and places greater emphasis on patient autonomy and the duty of healthcare providers to communicate effectively with their patients.

What is meant by harm?

In clinical negligence, harm refers to the physical, emotional, or financial damage suffered by a patient as a result of a healthcare provider's breach of duty.

Harm can range from minor injuries to permanent disabilities or even death, and it can have a significant impact on a patient's quality of life.

Examples of harm in clinical negligence include:

1. Physical harm such as injury or disability caused by medical treatment or surgical procedures
2. Emotional harm such as mental anguish, depression, or post-traumatic stress disorder (PTSD) caused by medical malpractice
3. Financial harm such as loss of income, increased medical expenses, or the cost of ongoing medical care due to medical errors
4. Loss of opportunity or loss of enjoyment of life due to the harm caused by the healthcare provider's negligence.

Why is clinical negligence different from other types of negligence?

Clinical negligence involves healthcare providers such as doctors, surgeons, nurses, dentists and other medically qualified personnel. Victims of clinical negligence by definition are often already ill at the time inadequate care is given, compounding an already difficult situation.

Victims may be left not only with their original medical complaint but further injury caused by incompetent care.

Cases are often complex and the solicitors handling the action must have a knowledge of both law and medicine and the interaction between the two. This requires a significant level of expertise and skill from the solicitor.

What should I do if I think I have a claim for clinical negligence?

You should see your solicitor. They will take instructions from you about the circumstances of your treatment. They will then obtain all your relevant medical notes and records to ascertain precisely what treatment you were given.

After going through the records and ensuring their accuracy, they will instruct an expert physician with the relevant expertise to determine if the treatment given to you was negligent.

If the expert finds that the treatment given was below the standard you were entitled to expect they will advise you accordingly and you can begin an action for compensation against the healthcare provider who was responsible for your medical care.

How long do I have to make a claim?

Normally in personal injury law (but see below for clinical negligence matters), you have:

• three years from the date of your injury to make a claim

• If you are making a claim on behalf of a child, it can be made any time before the child reaches the age of 18. Once a child reaches the age of 18 and if they have the requisite mental capacity, they have a further three years to make a claim themselves until they reach the age of 21

• If the injured party does not have the requisite mental capacity then there are no time limits on when a claim can be made

In clinical negligence cases, the time limit (what lawyers call the "limitation period") of three years will normally start either from the date of the act of negligence or from the date the patient knew or ought to have known that the injury or harm was due to an act of negligence.

The date of knowledge can be years after the negligent act, for instance, if an operation was performed negligently and a patient was unaware of this, it may be years before the patient's symptoms progress such as to necessitate medical attention.

In such circumstances the patient could not have known that the original operation was performed negligently until the symptoms appeared and the time limit will therefore only run from the date of knowledge of such negligence – not when the operation was originally performed, which could be many years after the date of the original negligent act.

Time limits in clinical negligence matters can be complicated and you should seek legal advice immediately if you think you have a claim. Do not delay.

How is my compensation assessed?

We divide compensation into a number of headings:

• Compensation for pain, suffering and the effect the injury has had on a client's life (what lawyers call "general damages"). The exact amount depends on the severity and extent of the injury and its impact. This will include physical and emotional loss, suffering and pain and compensation for loss of enjoyment of life

• The injured party's loss of earnings, past and into the future, including all job related benefits and pension loss (what lawyers call "special damages"). If your injuries have reduced your ability to work you will be entitled to the difference between what you would have earned but for the malpractice and what you can now earn

• If someone has had to stop or reduce their work because it was necessary to look after the injured party then the claim will include their loss of earnings, past and into the future, including all job related benefits and pension loss

• Cost of all medical expenses, past and future. This will include hospital bills and medication costs

• Cost of all therapy and rehabilitative treatment (including occupational therapy), past and future

• Cost of any nursing and domestic assistance, past and future

• Cost of any adaptions to property or the cost of new housing

• Cost of any adaptions to a vehicle or the cost of a new vehicle or travel or other costs

How long will my case take?

Clinical negligence cases are complex with a high level of legal expertise required. Expert reports from doctors are necessary and depending on the nature and severity of the injury, rehabilitative/care consultants and accountants may be instructed and such reports can take some time to prepare.

Straightforward cases may be settled within a year. More complex cases will normally take 2-4 years to conclude.

Will my case to go to court?

The vast majority of cases that have a reasonable prospect of success are settled and do not go to hearing. This is the case even where court proceedings have been commenced.

How can the Kearney Law Group help?

We appreciate that no amount of money can go anywhere near putting you back to the position you would have been in prior to the substandard clinical care.

What we can do is provide as much financial and other assistance as is possible to alleviate the burden of your loss.

We will ensure that you get the help you need now and into the future. Compensation will ensure you receive the best possible medical treatment, rehabilitation and care, both in the short and long term.

We are passionate about our work. We are easy to talk to and will keep you fully informed about the progress of your case.

We are tech enabled and use software platforms to ensure your case is dealt with expeditiously and professionally. We are very experienced and have a team ready to deal with all aspects of your claim for clinical negligence.

We only do personal injury law and are experts at it.

For further assistance please ring us at 02890 912 938 or email us on info@kearneylawgroup.com or fill in our contact form

The content of this blog is provided for information purposes only and does not constitute legal or other advice. No solicitor/client relationship or duty of care or liability of any nature shall exist or arise between the Kearney Law Group and you and we refer you to our disclaimer on our website.

Who do medical records belong to?

To the patient.

Do I need a reason to obtain a copy of my medical records?

No

Who holds my medical records?

Your GP holds your GP records at your local health centre.

Your hospital notes and records are kept by the Health Trust that manages the hospital.

What legislation deals with access to medical records generally?

The General Data Protection Regulations (GDPR) and the Data Protection Act 2018.

What do I do to get a copy of my medical records?

You must write to your GP or Health Trust seeking a copy of the records. You will normally have to supply a copy of some sort of photographic ID to confirm your identity.

Most GP's and Health Trusts have a website which sets out in more detail what documentation is required to enable you to access your medical records. Some have pro forma consent forms prepared already.

Do I have to pay for my records?

No fee is payable.

How long must I wait for the records?

Normally, the medical body concerned has one month to get the records to you. If the request is more complicated, this can be extended by another 2 months.

Can my request be refused?

Yes, in very limited circumstances where:

• healthcare professionals believe that information in the records is likely to cause serious harm or distress to you or another person

• details about third parties are included in the records. These details will have to be deleted

Do I have a right of appeal if my request is refused?

Yes, you may appeal to the Information Commissioner's Office.

How can I get my child's records?

You will have to show that you have parental responsibility for the child in question. The child's consent may also be necessary even if the child is under the age of 16 if they have the capacity to consent.

Can I obtain the records of a dead relative?

The Access to Health Records (NI) Order 1993 applies in such instances and not the GDPR or the Data Protection Act, 2018.

Due to a duty of confidentiality that remains after a person's death, access can only be provided in limited circumstances. You can find out from the relevant Trust or GP what documentation is required.

Persons entitled to apply will include the personal representatives named in a grant of representation in respect of the deceased's estate or where someone has a claim arising from the death. However, even this right is tempered:

• if there is evidence that the deceased did not wish for any or part of their information to be disclosed

• if disclosure of the information would cause serious harm to the physical or mental health of any person

• if disclosure would identify a third party (that is, not the patient nor a healthcare professional) who has not consented to that disclosure

If the record was made within 40 days of the request, there should be no charge for the record and they should be provided within 21 days of the request.

If the record was made more than 40 days before the request, then it must be disclosed within 40 days and any fee for the records should not exceed the fee noted in section 7 of the Data Protection Act, 1998 (currently £10).

Can my solicitor obtain my medical records?

Yes. You will have to sign a written authority prepared by your solicitor or the health professional concerned that allows access to your records. You will normally also have to give copy photographic ID as well.

Will my solicitor have to pay for my records?

The same rules and fees that apply to you apply to your solicitor. Your solicitor is acting as your agent.

If there is a power of attorney, can my attorney access my medical records?

That depends on the nature of the power of attorney. If the power of attorney gives your attorney power to access and copy your medical records, then they will be disclosed to your attorney.

The health professional concerned will likely ask for sight of the power of attorney.

What happens if my records are disclosed to someone without my authority?

Such unlawful disclosure will be in breach of the GDPR and the Data Protection Act, 2018. This is a serious matter and you can make a complaint to the Information Commissioner's Office.

You will also have a right of action for damages against the person or body who made the unlawful disclosure.

However, there are specific instances where it is lawful to disclose records without your consent:

• where required by law

• where required by a court order

• where necessary to detect or prevent crime, including allegations or suspicions of fraud

• where necessary to protect the public from serious harm, for example, the protection of vulnerable adults

• where required for monitoring certain health conditions

• monitoring of death

Who are the Kearney Law Group?

The Kearney Law Group are a legal firm that only does personal injury law. We are passionate about our work and are easy to talk to. We are tech savvy and use software platforms to ensure your case is dealt with expeditiously and professionally.

We only do personal injury law and are experts at it.

For further assistance please ring us at 02890 912 938 or email us on info@kearneylawgroup.com or fill in our contact form

The content of this blog is provided for information purposes only and does not constitute legal or other advice. No solicitor/client relationship or duty of care or liability of any nature shall exist or arise between the Kearney Law Group and you and we refer you to our disclaimer on our website.

Orthopaedics and clinical negligence claims

What is orthopaedic medicine?

Orthopaedics medicine focuses on the care of the musculoskeletal system. This system consists of muscles, bones, joints, ligaments, and tendons.

There are two types of orthopaedists: surgical and nonsurgical. Orthopaedic surgeons perform surgical procedures, while nonsurgical orthopaedists include therapists, physiotherapists, nurse practitioners and rehabilitation specialists.

What medical conditions do orthopaedists treat?

In broad terms:

• joint pain
• bone fractures
• soft tissue injuries
• back and neck pain
• hand, arm and shoulder pain and stiffness
• foot and ankle bone and tendon problems
• emergency trauma eg after a road traffic or work accident
• carpel tunnel syndrome
• overuse and sports injuries, including sprains, tendonitis, meniscus tears, and anterior cruciate ligament tears
• congenital conditions, such as scoliosis

What is clinical negligence?

Clinical negligence occurs when a healthcare professional gives a patient substandard care and as a result, the patient sustains injuries they would otherwise not have sustained.

Healthcare professionals have a duty of care to all their patients to ensure they are treated properly and appropriately.

Where substandard care has been given it is normally either a failure to treat the patient properly for their medical condition or a failure to get proper and informed consent from a patient for their medical treatment.

Why is clinical negligence different from other types of negligence?

Clinical negligence involves healthcare professionals such as doctors, surgeons, nurses, dentists and other medically qualified personnel. Victims of clinical negligence by definition are often already ill at the time inadequate care is given, compounding an already complicated situation.

Victims may be left not only with their original medical complaint but further injury caused by incompetent care.

Cases are often complex and the solicitors handling the action must have a knowledge of both law and medicine and the interaction between the two. This requires a significant level of expertise and skill from the solicitor.

How common are mistakes in orthopaedic care in the NHS?

In the 2021-2022 NHS Resolution report, orthopaedic surgery accounted for 12% of all claims of clinical negligence and 3% of all claims paid out. Between 2018 – 2022 there were 3991 cases of clinical negligence involving orthopaedic surgery.

What types of clinical negligence claims arise in orthopaedic surgery?

• Diagnostics errors such as delay in diagnosis of fractures or misdiagnosis. For example, misdiagnosis of a fracture as a sprain or delaying the diagnosis of a bone infection can lead to a delay in treatment and worsened outcomes.

• Surgical Errors: Errors during surgery can occur due to a lack of proper planning or execution, leading to injury or harm to the patient. For example, wrong site surgery, implanting the wrong size or type of prosthesis, or failing to properly align bones during joint replacement surgery can result in significant harm to the patient.

• Infection: Infections can occur during or after surgery, leading to serious complications and even death. For example, surgical site infections or infections caused by contaminated medical devices or implants can result in severe harm to the patient.

• Nerve Damage: Damage to nerves can occur during surgery or as a result of improper positioning or handling of the patient during surgery. For example, nerve damage during hip replacement surgery can result in numbness, weakness, or even paralysis of the affected limb.

• Post-Operative Care: Inadequate or negligent post-operative care can lead to complications and harm to the patient. For example, failing to properly monitor a patient's condition after surgery or not providing appropriate pain management can result in serious harm to the patient.

• Neonatal problems – failure to diagnose bone and joint infection and congenital dislocations of the hip and developmental hip dysplasia.

• Failure to take and/or properly read and interpret x rays.

• Lack of proper and informed consent to surgery and/or treatment. Patients must be fully informed of the risks and benefits of their treatment before undergoing surgery. Failure to obtain informed consent can result in a claim of clinical negligence.

• Post-operative infection. Surgical site infections can be a problem. Failure to prevent or properly treat these infections can result in serious complications.

• Medication errors. Medication not appropriately prescribed for the patient or failure to monitor the patient's response to medication. These errors can result in serious complications, such as allergic reactions or overdoses.

• Implant related complications such as hip and knee replacements. These can sometimes fail or cause complications due to design of the implant, surgical technique or a patient's anatomy.

• Non union of fractures.

What are the consequences of clinical negligence in orthopaedic surgery?

This will depend on the nature of the surgery and the original orthopaedic complaint. Some patients may recover relatively quickly where the original complaint was not serious and the negligent act remedied quickly.

In other cases there may be life long difficulties with pain, suffering and disability.

In the most serious cases, patients' ability to work have been severely curtailed and they have been unable to care for themselves with devastating consequences for them and their families' physical, mental and economic well being.

What should I do if I think I have a claim for clinical negligence in orthopaedic surgery?

You should see your solicitor. They will take instructions from you about the circumstances of your treatment. They will then obtain all your relevant medical notes and records to ascertain precisely what treatment you were given.

After going through the records and ensuring their accuracy, they will instruct an expert physician with the relevant expertise in orthopaedic medicine to determine if the treatment given to you was negligent.

If the expert finds that the treatment given was below the standard you were entitled to expect they will advise you accordingly and you can begin an action for compensation against the healthcare professional who was responsible for your medical care.

How long do I have to make a claim?

Normally in personal injury law (but see below for clinical negligence matters), you have:

• three years from the date of your injury to make a claim
• If you are making a claim on behalf of a child, it can be made any time before the child reaches the age of 18. Once a child reaches the age of 18 and if they have the requisite mental capacity, they have a further three years to make a claim themselves until they reach the age of 21
• If the injured party does not have the requisite mental capacity then there are no time limits on when a claim can be made

In clinical negligence cases, the time limit (what lawyers call the "limitation period") of three years will normally start either from the date of the act of negligence or from the date the patient knew or ought to have known that the injury or harm was due to an act of negligence.

The date of knowledge can be years after the negligent act, for instance, if an operation was performed negligently on a shoulder joint replacement and a patient was unaware of this, it may be years before the patient's symptoms progress such as to necessitate medical attention.

In such circumstances the patient could not have known that the original operation was performed negligently until the symptoms appeared and the time limit will therefore only run from the date of knowledge of such negligence – not when the operation was originally performed, which could be many years after the date of the original negligent act.

Time limits in clinical negligence matters can be complicated and you should seek legal advice immediately if you think you have a claim. Do not delay.

How is my compensation assessed?

We divide compensation into a number of headings:

• Compensation for pain, suffering and the effect the injury has had on a client's life (what lawyers call "general damages"). The exact amount depends on the severity and extent of the injury and its impact. This will include physical and emotional loss, suffering and pain and compensation for loss of enjoyment of life
• The injured party's loss of earnings, past and into the future, including all job related benefits and pension loss (what lawyers call "special damages"). If your injuries have reduced your ability to work you will be entitled to the difference between what you would have earned but for the malpractice and what you can now earn
• If someone has had to stop or reduce their work because it was necessary to look after the injured party then the claim will include their loss of earnings, past and into the future, including all job related benefits and pension loss
• Cost of all medical expenses, past and future. This will include hospital bills and medication costs
• Cost of all therapy and rehabilitative treatment (including occupational therapy), past and future
• Cost of any nursing and domestic assistance, past and future
• Cost of any adaptions to property or the cost of new housing
• Cost of any adaptions to a vehicle or the cost of a new vehicle or travel or other costs

How long will my case take?

Clinical negligence cases are complex with a high level of legal expertise required. Expert reports from doctors are necessary and depending on the nature and severity of the injury, rehabilitative/care consultants and accountants may be instructed and such reports can take some time to prepare.

Straightforward cases may be settled within a year. More complex cases will normally take 2-4 years to conclude.

Can I get an interim payment of compensation before my case is settled?

Yes. Interim payments can be made in personal injury cases where there is an immediate need for financial assistance. The value of any such payment is deducted from the final figure awarded in compensation.

Such payments are used in cases that can take some years to settle. They help families meet immediate financial demands and can pay for medical and other expert therapies as quickly as possible.

Will my case to go to court?

The vast majority of cases that have a reasonable prospect of success are settled and do not go to hearing. This is the case even where court proceedings have been commenced.

How can the Kearney Law Group help?

We appreciate that no amount of money can go anywhere near putting you back to the position you would have been in prior to the substandard clinical care.

What we can do is provide as much financial and other assistance as is possible to alleviate the burden of your loss.

We will ensure that you get the help you need now and into the future. Compensation will ensure you receive the best possible medical treatment, rehabilitation and care, both in the short and long term.

We are passionate about our work. We are easy to talk to and will keep you fully informed about the progress of your case.

We are tech enabled and use software platforms to ensure your case is dealt with expeditiously and professionally. We are very experienced and have a team ready to deal with all aspects of your claim for clinical negligence.

We only do personal injury law and are experts at it.

For further assistance please ring us at 02890 912 938 or email us on info@kearneylawgroup.com or fill in our contact form

The content of this blog is provided for information purposes only and does not constitute legal or other advice. No solicitor/client relationship or duty of care or liability of any nature shall exist or arise between the Kearney Law Group and you and we refer you to our disclaimer on our website.

Ice and snow – work, accidents and the law

Cold and icy weather can lead to a multitude of problems during the Winter and early Spring months in Ireland. On top of the longer nights, they make a difficult situation worse.

Accidents on the road are more common and slips and trips on pavements can increase when the weather turns below freezing.

November, December and January have the highest number of car insurance claims and it is estimated that there is a 25% increase in car insurance claims in November when compared with April.

Slips and falls can increase by 10-15% in icy conditions with a corresponding increase in the demands on the ambulance and A and E services. What are the legal implications of ice and snow - at work and in accidents.

What are my legal obligations when driving a car in the snow and ice?

These are set out in the Highway Code. They include:

• Using your headlights when visibility is seriously reduced
• Using fog lights if necessary
• Increasing stopping distances (as much as 10 times than those for dry roads)
• Ensuring your car is clear of ice and snow so that your visibility is not adversely affected and your number plates are clear and legible
• Be careful when overtaking
• Ensure your tyres are in good working order

When conditions are harsh, you should only go out on the roads if your journey is absolutely necessary and you should always carry in your car an emergency kit to include de icer, ice scraper, torch, warm clothes and boots, first aid kit, jump leads, a shovel and some liquid and food for emergencies should you get stuck.

Make sure your phone is fully charged and you have a charging lead with you.

I cannot get to work due to icy conditions – is my employer obliged to pay me?

You should first see if you can work remotely and if so, obtain your employers consent to do so. If this is impossible, then whether you get paid or not will depend on your contract of employment.

Unless there is provision in your contract of employment that obliges the employer to pay you in such circumstances, they are under no duty to pay you if you are unable to get to work.

You may be able to get day off as annual leave but that is at your employer's discretion.

My child's school is closed – do I still have to come to work?

You will be entitled to take dependant leave but this is likely to be unpaid unless there is provision for payment in your contract of employment.

My workplace is freezing – can I insist the office is warmer?

The regulations state that working conditions should be kept at a reasonable temperature and that temperature will depend on the type of work you do. The Health and Safety Executive state that workplaces should be heated to at least 16 C.

If you work out of doors, there are no minimum temperatures but your employer would have to ensure that you have adequate clothing and PPE and access to hot drinks.

My car skidded in icy road conditions and was damaged. I was also hurt. The road was not gritted. Do I have a claim for compensation?

The Department does have a duty to take reasonable care in keeping the roads clear – including in icy and snowy conditions.

However that is a general duty and depends on the resources available to clear and grit the road, the nature of the weather event, how busy the road is normally and what can reasonably be expected of the public authority.

In addition there will be a duty on the driver to take into account the weather conditions when driving (such as speed, stopping distances etc) and if the driver fails to do so, the value of any potential claim will be adversely affected.

I slipped and hurt myself on an icy pavement in town. Do I have a claim for compensation?

The local authority or council does have a responsibility to ensure pavements and public footpaths are kept in a safe and satisfactory condition – including in bad weather.

They must take whatever steps are reasonably practicable but are not obligated to keep them totally clear of ice and snow. Such claims can be difficult.

I slipped and fell on ice when walking up the steps to the entrance of my employer's offices. I sprained my arm and hurt my shoulder. Do I have a claim for compensation?

Yes – you may well have. Employers have a duty to provide a safe workplace and under occupier's liability legislation they also have a duty to ensure that employees and visitors are safe when walking into or around their premises.

This includes keeping steps reasonably free of ice and snow in wintry conditions and failure to remove it may create an actionable hazard and a claim for compensation.

I slipped and fell on ice on the entrance to a shop I was entering. Do I have a claim for compensation?

Yes – you may well have. Occupier's liability legislation imposes a duty on the shopkeeper to ensure that shoppers are safe when accessing or walking around their shop. In wintry conditions, this would include removing ice and snow where it is a hazard.

However the duty imposed on the shopkeeper is to take reasonable care for the safety of any shoppers entering the shop. If a shopkeeper has taken reasonable steps then that may be a defence to any action.

Do I have to keep my driveway or path to my house free of ice and snow and what is the position if someone slips or falls on it?

Under the occupier's liability legislation, householders do have a duty to take reasonable steps to ensure that people on their property are safe.

If you are clearing snow from your path or driveway, try to ensure that you dispose of the snow safely where it does not create another hazard as that could lead to problems for the householder.

Similarly if you clearing ice, do not use hot water – this will only freeze again and that may create a liability for the householder if someone sustains injury on the reformed ice.

The Government do have a Snow Code and it is worthwhile following its Guidelines.

What should I do if I have an accident?

1. Seek medical attention if necessary. The medical records can also be used at a later date as evidence in your case.
2. Take photos of the area where you hurt yourself.
3. Report your accident to the owner of the premises or the organisation responsible for the area in question.
4. If there are witnesses, get their contact details and leave them yours.
5. Talk to your solicitor.

What compensation will I receive for injuries sustained in an accident?

This will depend on the nature of your injuries and your financial loss. It will include:

1. Compensation for your injuries. The amount depends on how serious your injuries were and how long it takes you to recover from them.
2. All your medical expenses, now and into the future.
3. Any loss of earnings, now and into the future.
4. The costs of any adaptions to your home or car because of your injuries.
5. Any care costs that have been or will be incurred because of your injuries.
6. Any other expenses.

How long do I have to make a claim?

Normally you have three years from the date of your injury. However:

1. If your child sustains injury, a claim can be made any time before the child reaches the age of 18. Once your child reaches the age of 18, they have a further three years to make a claim themselves until they reach the age of 21.
2. If the person who sustains the injury does not have mental capacity then there are no time limits.

Why Kearney Law?

We at Kearney Law are ready to assist you and have the knowledge and expertise you need to make a successful claim for compensation.

We have an expert team ready to deal with your accident.  We will ensure you recover compensation for your injuries, swiftly and professionally.

We only do personal injury law and are experts at it.

For further assistance please ring us at 02890 912 938 or email us on info@kearneylawgroup.com or fill in our contact form

The content of this blog is provided for information purposes only and does not constitute legal or other advice. No solicitor/client relationship or duty of care or liability of any nature shall exist or arise between the Kearney Law Group and you and we refer you to our disclaimer on our website.

Cerebral Palsy claims

What is cerebral palsy?

A neurological, non progressive physical and/or mental handicap which becomes apparent after the birth of a child.

What causes cerebral palsy?

There is often no readily apparent cause.

In cases where a cause can be established, it can be due to hereditary problems, difficulties with intra uterine growth, preterm delivery, infection, preterm delivery chronic (over a period of time) or acute (sudden or immediate) lack of oxygen and postterm delivery lack of oxygen.

What causes chronic preterm delivery lack of oxygen?

In some cases, where the mother has developed diabetes, infection, high blood (hypertension) or has low growth of the foetus.

What causes acute preterm delivery lack of oxygen?

Placental separation, bleeding in the brain, prolapse of the umbilical cord, cord getting tangled, placental insufficiency, delay in delivery, shoulder dystocia (where the baby's shoulder gets caught during delivery above the mother's pubic bone).

What causes postterm delivery lack of oxygen?

Inadequate resuscitation of baby after delivery, incorrect administration of pain killing medication with resulting depression of normal respiration, meconium aspiration.

Are there different types of cerebral palsy?

Yes. There are 4 types of cerebral palsy:

• Spastic cerebral palsy

This is the most common. Muscle tone is increased so the muscles are stiff and tight making it difficult to move.

• Dyskinetic cerebral palsy

In this instance, the muscle tone can suddenly change from high to low causing uncontrolled movement and spasm.

• Ataxic cerebral palsy

This is the most uncommon. Movement is shaky and balance poor meaning problems with fine motor movement, tremors and co-ordination. Standing or sitting can be difficult.

• Mixed cerebral palsy

Mixed features of the different types of cerebral palsy.

What are the symptoms of cerebral palsy?

The symptoms of cerebral palsy may not become evident in a baby immediately and it may be 2-3 years before they are apparent. They include:

• delays in reaching development milestones – such as not sitting by 8 months or not walking by 18 months.
• seeming too stiff or floppy.
• weak arms or legs.
• fidgety, jerky or clumsy movements.
• random, uncontrolled movements.
• muscle spasms.
• shaking hands.

How prevalent is cerebral palsy?

Cerebral palsy is the most common motor disability in childhood. It affects 1 in 400 children in the UK.

How often is a cerebral palsy due to a failure in clinical care?

Approximately 1800 cases are diagnosed every year and it is estimated that at least 8% are caused by failures in clinical care.

Between 2010/11 and 2020/21, NHS trusts settled 1,441 clinical negligence claims relating to cerebral palsy, paying £4.3 billion in damages - an average of £3 million per case.

Why does a failure in clinical care lead to cerebral palsy in some cases?

There are a number of reasons why substandard clinical care can lead to cerebral palsy, some of them are:

• lack of oxygen to the baby's brain before, during or after delivery. This can be due to undue delay in delivery, a delayed caesarean section, entanglement of the umbilical cord, shoulder dystocia (where the baby's shoulder gets caught during delivery above the mother's pubic bone) or where the baby is in distress but is not monitored properly.
• Failure to adequately or properly treat a mother's pre existing medical condition such as diabetes or high blood pressure. The mother may have an infection that has not been treated properly or at all.
• Inadequate resuscitation of baby after delivery.

How do I know if I have a clinical negligence claim?

You should instruct solicitors who will investigate your case for you. This normally means taking a full history from you and obtaining a copy of all your and your child's relevant clinical notes and records.

Once these are obtained, medical experts are instructed to determine if the medical care given to you and your baby was up to the standard you were entitled to expect and if not, what mistakes were made and what would have happened if they had been avoided.

It is on the basis of these medical reports that your solicitors will advise you whether your case has a reasonable prospect of success.

How long do I have to make a claim?

• If you are making a claim on behalf of your child, it can be made any time before the child reaches the age of 18. Once your child reaches the age of 18 and if they have the requisite mental capacity, they have a further three years to make a claim themselves until they reach the age of 21.
• If your child does not have the requisite mental capacity then there are no time limits on when a claim can be made.
• If you have sustained injury yourself then you normally have three years from the date of your injury to make a claim.

In clinical negligence cases, the time limit (what lawyers call the "limitation period") will normally start from either the date of the act of negligence or from the date of the patient's knowledge that the injury or harm was due to an act of negligence.

The date of knowledge can be years after the negligent act eg if clinicians negligently fail to diagnose a serious condition, it may be years before the patient's symptoms progress to necessitate medical attention.

In such circumstances the patient could not have known that the doctors had been initially negligent in failing to diagnose the condition and the time limit will therefore run from the date of knowledge of such negligence – which could be many years after the original negligent act.

Time limits in clinical negligence matters can be complicated and you should seek legal advice immediately if you think you have a claim. Do not delay.

 How can the Kearney Law Group help?

We appreciate that no amount of money can go anywhere near putting your child, yourself and your family back to the position they would have been in prior the substandard clinical care.

What we can do is provide as much financial and other assistance as is possible to alleviate the burden of your and your child's loss.

Babies affected by cerebral palsy will require help now and into the future and compensation will ensure they receive the best of medical treatment, rehabilitation and care both short and long term.

We will do everything in our power to ensure that you and your child are compensated fully and are provided for now and into the future.

How is my compensation assessed?

We divide compensation into a number of headings:

• Compensation for pain, suffering and the effect the injury has had on your and your child's life (what lawyers call "general damages"). The exact amount depends on the severity and extent of the injury and its impact.
• If you have to stop or reduce your work to look after your child then the claim will include loss of earnings, past and into the future, including all job related benefits and pension loss.
• Cost of all medical expenses, past and future.
• Cost of all therapy and rehabilitative treatment (including occupational therapy), past and future.
• Cost of any nursing and domestic assistance, past and future.
• Cost of any adaptions to your property or the cost of new housing.
• Cost of any adaptions to your car or the cost of a new vehicle or travel or other costs.

How long will my case take?

Cerebral palsy clinical negligence cases are complex with a high level of legal expertise required. Expert reports from doctors, rehabilitative/care consultants and accountants are necessary and they can take some time to prepare. Cases will normally take at least 2-3 years to conclude.

Can I get an interim payment of compensation before my case is settled?

Yes. Interim payments are made in personal injury cases where there is an immediate need for financial assistance. The value of any such payment is deducted from the final figure awarded in compensation.

Such payments are used in cases that can take some years to settle. They help families meet immediate financial demands and can pay for medical and other expert therapies as quickly as possible.

Why choose the Kearney Law Group?

We, at the Kearney Law Group, are passionate about our work.

We are here to assist you and have the knowledge and expertise you need to make a successful claim for compensation.  We are easy to talk to and will keep you fully informed about the progress of your case.

We have an expert team ready to deal with all aspects of your claim for cerebral palsy.  We'll explain your options and what your claim may be worth.

We only do personal injury law and are experts at it.

For further assistance please ring us at 02890 912 938 or email us on info@kearneylawgroup.com or fill in our contact form

The content of this blog is provided for information purposes only and does not constitute legal or other advice. No solicitor/client relationship or duty of care or liability of any nature shall exist or arise between the Kearney Law Group and you and we refer you to our disclaimer on our website.

Traumatic head and brain injury claims

KLG had helped many clients who have suffered traumatic head and brain injuries. These injuries have arisen in road traffic accidents, accidents at work, trips or falls or as a result of clinical negligence.

Whatever the cause of your traumatic head and brain injury, we have a team of professionals to help you live with your injury and ensure that you get proper compensation for your loss.

Headway, the brain injury charity, estimate that there are between 10000 to 20000 severe traumatic head and brain injury cases every year. This does not include moderate or more minor brain injury cases.

Are there different types of traumatic head and brain injury?

Yes. The vast majority of such injuries do not lead to ongoing physical or mental problems.

It is estimated that 95% of those attending hospitals with head injuries have only mild symptoms and uneventful recovery. The remaining 5% are left with moderate or severe brain injury.

Head and brain injuries are related to a patient's level of consciousness following an injury. Doctors measure consciousness using the Glasgow Coma Scale (GSC).

This is an objective method of assessing a patient's neurological, motor and verbal responsiveness. The lower the patient is on the GSC, the greater the brain injury. Generally, brain injury is classified as:

• Severe – GSC 8-1
• Moderate – GSC 9-12
• Mild – GSC 13-15

MRI and CT scans and other tests are also used by doctors in determining how severe the head and brain injury is.

Lawyers divide traumatic injuries of this nature into severe, moderate and mild – depending on the nature of the injury and its impact on the injured person.  

Children

The Glasgow Coma Scale is generally not used for children. The Pediatric GSC is used instead and relies on a child's responsiveness to eye, motor and verbal stimuli.

What are the symptoms of traumatic head and brain injury?

• Physical. Paralysis/weakness, motor difficulties, co-ordination, tiredness, balance problems, hearing, touch and sight difficulties, loss of smell, sleeping impairment.
• Memory and concentration. Loss of memory, attention span problems, confusion, loss of train and speed of thought, changes in cognition.
• Emotional and mood. Depression, anxiety, neurosis, irritability, anger management, relationship difficulties.

Symptoms and their impact vary depending on the severity of the injury and its impact on the injured person.

Is concussion a type of brain injury?

Concussion can be a mild form of brain injury. It usually arises following a traumatic incident, such as in a road traffic accident, if something falls on your head at work or if you bump your head. It is especially common in contact sports.

What are the symptoms of concussion?

These are very similar to the symptoms listed above – they tend to be milder and more transitory.

If you suffer concussion, always seek medical help, especially if there is any loss of consciousness, no matter how short. The earlier the diagnosis, the sooner treatment can begin, and the better of the chances of recovery.

What is post-concussional syndrome?

Sometimes concussion symptoms do not clear up, and last longer than expected (more than three months). The symptoms include headaches, dizziness, memory and concentration problems and can last for months. Treatment is aimed at relieving symptoms, and most symptomology is resolved within a year. 

How can the Kearney Law Group help?

If your head or brain injury was due to someone else's negligence, including clinical negligence, then you may be entitled to compensation for your loss.

We appreciate that no amount of money can go anywhere near putting you or a member of your family back to the position they were in prior to the negligent accident or act.

What we can do is provide as much financial and other assistance as is possible to alleviate the burden of your loss.

We will do everything in our power to maximise your recovery (including the cost of rehabilitation) and ensure that you and your family are provided for now and into the future.

How is my compensation assessed?

We divide compensation into a number of headings:

• Compensation for your physical and mental injuries to include your pain and suffering (what lawyers call "general damages"). The exact amount depends on the severity and extent of the injuries and their impact on the injured person
• Loss of earnings, past and into the future, including all job related benefits and pension loss.
• Cost of all medical expenses, past and future
• Cost of all therapy and rehabilitative treatment, past and future
• Cost of any nursing and domestic assistance, past and future
• Cost of any adaptions to your property or the cost of new housing
• Cost of any adaptions to your car or the cost of a new vehicle or travel or other costs if you can no longer drive
• Value of a partner or family member who has to care for you (and their loss of earnings if they have given up or changed their working hours to care for you)

Can I get an interim payment of compensation before my case is settled?

Yes. Interim payments are made in personal injury cases where there is an immediate need for financial assistance. The value of any such payment is deducted from the final figure awarded in compensation.

Such payments are used in cases that can take some years to settle – as in head and brain injury cases.

They help the injured person and their families meet immediate financial demands and can pay for medical and other expert therapies as quickly as possible.

How long do I have to make a claim?

Normally you have three years from the date of your injury. However:

• If your child sustains injury, a claim can be made any time before the child reaches the age of 18. Once your child reaches the age of 18, they have a further three years to make a claim themselves until they reach the age of 21.
• If the person who sustains the injury does not have mental capacity then there are no time limits.
• Subject to the above, in clinical negligence cases, the time limit of three years will normally either start from the date of the act of negligence or from the date of the patient's knowledge that the injury or harm was due to an act of negligence. Time limits in clinical negligence matters can be complicated and you should seek legal advice immediately if you think you have a claim. Do not delay.

Why choose the Kearney Law Group?

We, at the Kearney Law Group, are ready to assist you and have the knowledge and expertise you need to make a successful claim for compensation for traumatic head and brain injury.

We have an expert team ready to deal with your claim.  We will ensure you recover compensation for your injuries, swiftly and professionally.

We only do personal injury law and are experts at it.

For further assistance please ring us at 02890 912 938 or email us on info@kearneylawgroup.com or fill in our contact form

The content of this blog is provided for information purposes only and does not constitute legal or other advice. No solicitor/client relationship or duty of care or liability of any nature shall exist or arise between the Kearney Law Group and you and we refer you to our disclaimer on our website.

Compensation for nervous shock and psychological injury in Northern Ireland

16^th February, 2023

When someone is injured following a road traffic accident, accident at work or due to the negligence of another person (such as in a clinical negligence claim), they may suffer both a physical injury and/or a psychological one.

The victim is entitled to separate compensation for each type of injury. Psychological injuries include post traumatic stress disorder, depression, anxiety and panic attacks.

To make a successful claim for compensation for psychological injury in NI, a victim must show:

They suffered from a recognisable psychiatric illness.

Mental distress, emotional upset or shock falling short of a recognisable psychiatric illness is not compensatable. You do not have to suffer a physical injury that in turn leads to the psychological injury.

You may make a claim for compensation for psychological injury alone as long as it is a recognised psychiatric illness.

Such recognisable psychiatric illness was shock induced.

You must show that your psychiatric injury was due to the accident or incident that led to it. The fact that one person may in similar circumstances not have developed a psychiatric illness is irrelevant.

Law takes a victim as it finds him or her – as long as the illness arises from the negligent event, it is potentially compensatable.

That such shock was caused by another person's negligence.

You must show (as in all accidents which attract compensation) that the person who caused the injury owed a duty of care to you and that they breached that duty of care and as a result you sustained your injury be it physical, mental or both.

For instance if you were in a road traffic accident that was not your fault, the road user that caused the accident would be in breach of their duty of care to you and would be liable to you in damages for any injury, physical and/or mental you sustained.

Similarly if you were hurt in an accident at work, your employer would owe a duty of care to you and if their negligence caused you an injury, physical and/or mental, then you would be entitled to make a claim against them.

In a case before the Circuit Court in Ireland in 2000 a woman employee suffered a psychiatric illness when she switched on a machine without realising there was a workman inside the machine.

Her illness was due to what had happened to her and she sued her employer for damages.

The Judge held that the employer was in breach of their duty of care to her in failing to take care of the safety of employees and that the harm suffered by the employee was reasonably foreseeable. She was awarded damages.

That such shock must have been by reason of actual or apprehended physical injury.

This is normally straightforward where the victim was involved or participated in the event.

For instance if you were involved in a road traffic accident with another driver that was not your fault and you developed a psychological condition as a result of the accident, whether together with physical injuries or not, the other driver will be responsible for compensating you for your loss as it arose directly from being there and your actual or apprehended physical injury. In such circumstances you are called a "primary victim".

Compensation for "secondary victims".

There is a second set of potential victims that we call "secondary victims" who are themselves not in physical danger but who have developed psychiatric disease as a result of witnessing the injury or death of the primary victim but not first hand so to speak.

For instance, if a loved one was hurt in an accident that was not their fault and you saw their injuries immediately afterwards in hospital and you developed a psychiatric illness as a result of what you saw in hospital – would you have a claim for such illness against the person who caused your loved one's accident?

The leading case in this area of law is Alcock v Chief Constable of South Yorkshire (1991). This case arose from the Hillsborough disaster.

The claimants were all friends, family or relatives of those who had died in the stadium. The overcrowding in the stadium was due to police negligence.

Some of the victims were there in the stadium, some of them at home watching events unfold in front of the TV and some suffered harm when told what had happened or saw their loved ones' bodies in the morgue.

In that case, the House of Lords (now the Supreme Court) held that for a secondary victim to recover compensation the following conditions must be satisfied:

• the psychiatric injury must arise from witnessing the injury/death of the primary victim
• the injury must arise from shock
• there are close ties of love and affection between the primary and secondary victims
• the secondary victim was either present at the scene of the incident or a short time later
• injury of that type to the secondary victim was reasonably foreseeable

 One can therefore obtain compensation as a secondary victim but only in very specific circumstances.

What compensation will I receive for injuries sustained in an accident?

This will depend on the nature of your injuries and your financial loss. It will include:

This will depend on the severity of your psychological illness and any financial loss arising from it. It will include:

• Compensation for the pain and suffering caused by your psychological loss. The amount depends on how serious your disease process is and its impact on you
• All your medical expenses, now and into the future
• Any loss of earnings, now and into the future
• Any other financial loss
• The costs of any adaptions to your home or car because of your injuries
• Your rehabilitation costs
• Any care costs that have been or will be incurred because of your injuries

How long do I have to make a claim?

Normally you have three years from the date of your injury. However:

• If your child sustains injury, a claim can be made any time before the child reaches the age of 18. Once your child reaches the age of 18, they have a further three years to make a claim themselves until they reach the age of 21.
• If the person who sustains the injury does not have mental capacity then there are no time limits.

Why choose the Kearney Law Group?

We, at the Kearney Law Group, are ready to assist you and have the knowledge and expertise you need to make a successful claim for compensation.

We have an expert team ready to deal with your claim.  We will ensure you recover compensation for your injuries, swiftly and professionally.

We only do personal injury law and are experts at it.

For further assistance please ring us at 02890 912 938 or email us on info@kearneylawgroup.com or fill in our contact form

The content of this blog is provided for information purposes only and does not constitute legal or other advice. No solicitor/client relationship or duty of care or liability of any nature shall exist or arise between the Kearney Law Group and you and we refer you to our disclaimer on our website.

13^th February, 2023

Hearing loss and compensation claims in Northern Ireland

Noise induced hearing loss related to work is a major cause of deafness, hearing impairment and tinnitus in Great Britain. According to statistics from the Health and Safety Executive, there were an estimated 11,000 workers with work-related hearing problems between 2019/20-2021/2022.

Although occupational deafness is diminishing year on year, there were still 10 cases of deafness in 2021 (from approximately 200 cases in 2010).

There is a distinct gender bias in these figures with females only making up 5 of the 810 cases between 2012 and 2021. This is likely related to the smaller number of women in workplaces that could lead to hearing related problems.

Work related noise induced hearing loss remains a serious problem and we have set out below the law relating to hearing loss and compensation claims for compensation in NI.

What is noise induced hearing loss?

We hear sound when vibrations travelling through the air reach our ears. These vibrations are picked up by tiny hairs in our inner ears and converted to sound in the brain.

Noise induced hearing loss occurs when there is permanent damage to tiny hair cells in our ears by excessive noise.  Unfortunately, these hair cells are not replaceable once damaged and cannot regrow.

This means hearing loss, the extent of which depends on how much damage has been caused to these hair cells, is permanent.

When does noise induced hearing loss take place?

In work related hearing loss cases, this is normally exposure to noise in excess of the recommended levels. This often takes place over a lengthy period of time. However, hearing loss can be caused by a single excessively noisy event such as an explosion.

Jobs with the highest risk of hearing loss in Northern Ireland include:

• Mining and oil and gas extraction
• Agriculture
• Construction and carpentry
• Military

What are the signs of noise induced hearing loss?

• Higher pitched sounds are harder to hear than lower pitched sounds
• People sound as if they are mumbling more than they used to
• It is harder to hear speech especially words with "s", "t", "sh" and "th" sounds in them
• You have pain in your ears after loud noise exposure
• You have tinnitus – a ringing, whooshing, roaring or buzzing sound in your ears
• Friends comment that you talk loudly or appear to shout (even though you are unaware of this)

How do you know if the sound you hear is excessive?

Scientists who are experts in hearing (audiologists) measure sound in decibels. In general any prolonged exposure to sound should not exceed sound above a recommended level of 85 decibels, depending how long, how often and how close one is to such exposure.

The Royal National Institute for the Deaf have a free online hearing loss test.

Can my hearing loss be treated?

Unfortunately, hearing loss and tinnitus once it occurs is permanent. However there are treatments and devices that may assist and the earlier one is removed from the source of the hearing loss and the earlier one seeks medical assistance, the better.

What are my employer's legal responsibilities?

All employers have a duty of care to their employees to ensure that they have a safe working environment.

If employees are exposed to potentially excessive noise at work, then the employer must ensure that they take whatever steps are necessary to remove them from any danger of hearing loss (for example by supplying personal protective equipment such as ear protection) or by removing employees altogether from exposure to excessive noise when the dangers are too great.

Employers are expected to carry out risk assessments to determine how great the dangers of excessive noise exposure are and what steps can be taken to lessen or prevent same.

If employers fail to recognise the risks employees face due to excessive work related noise or fail to take steps to prevent employees being harmed from such exposure, then employees will have a claim for hearing loss compensation against such employers in Northern Ireland.

What does a claim for compensation include?

This will depend on the severity of your hearing loss or tinnitus and your financial loss arising from it. It will include:

• Compensation for the pain and suffering caused by the hearing loss, tinnitus or disease, including any psychological loss such as depression arising it. The amount depends on how serious your disease process is and its' impact on you
• All your medical expenses, now and into the future
• Any loss of earnings, now and into the future
• Any other financial loss
• The costs of any adaptions to your home or car because of your injuries
• Your rehabilitation costs
• Any care costs that have been or will be incurred because of your injuries

How much time do I have to make a hearing loss compensation claim in NI?

Normally you have three years from the date of your injury to bring a claim.

However, in cases involving noise induced hearing loss this can be difficult to determine as hearing loss often takes place over an extended period of time and is not apparent until some years after the initial exposure began.

In such circumstances , the limitation period begins three years from the date you knew or a reasonable person ought to have known that your hearing loss was linked to your employment.  Because hearing loss tends to occur over time, the date of knowledge in noise induced hearing loss cases often tends to be the date one is diagnosed with the disease.

Limitation periods can be complicated and it is best to seek expert legal advice immediately if you feel that your hearing has been adversely affected by your work. Do not delay.

Special Time limits for children or those without mental capacity

• If your child suffers from noise induced hearing loss, a claim can be made any time before the child reaches the age of 18. Once your child reaches the age of 18, they have a further three years to make a claim themselves until they reach the age of 21 (and the same rules apply as in the preceding paragraph about the date one became aware of the hearing loss).
• If the person who sustains the injury does not have mental capacity then there are no time limits.

Why choose Kearney Law?

We, at the Kearney Law Group are ready to assist you and have the knowledge and expertise you need to make a successful claim for compensation.

We have an expert team ready to deal with your hearing loss and compensation claim in NI. We will advise you on the options available to you swiftly and professionally and ensure you recover proper compensation for your loss.

We only do personal injury law and are experts at it.

For further assistance please ring us at 02890 912 938 or email us on info@kearneylawgroup.com or fill in our contact form

The content of this blog is provided for information purposes only and does not constitute legal or other advice. No solicitor/client relationship or duty of care or liability of any nature shall exist or arise between the Kearney Law Group and you and we refer you to our disclaimer on our website.