4 Key Considerations for a Misdiagnosis Claim

Here are some important thoughts to consider in how to respond:

Misdiagnosis can stem from predictable factors like human error, equipment faults, flawed procedures and failures of communication. Irrespective of the cause, its effects vary greatly. Medical negligence litigation aims to put things right for the individual, but also acts to incentivise clinicians and healthcare institutions to raise their standards.

Making a claim against misdiagnosis is a major step, and it’s easy to be deterred by perceptions that doing so is somehow ‘working the system’. You should feel confident in your decision to pursue the compensation owed to you, as well as to determine what went wrong. A good solicitor will provide support and a personal service, along with expertise in their field. Discussing available options is often a useful tool to aid in your recovery.

Consider how quality of life may have changed as a result of the misdiagnosis. For our client Richard Peat, inaction and delays meant surgery to remove a cancerous tumour was significantly more extensive than it need have been. It was 20 months between Richard’s first consultation and the extensive surgery, radio and chemotherapy that finally addressed his cancer.

Surgeons were unable to save his eye and the ordeal has altered his future beyond measure, but he is taking action to hold those responsible to account and to secure his financial future through a misdiagnosis claim with us.

Be clear about what you’d like to achieve from a claim of misdiagnosis. An experienced, specialist firm will recognise that the claimant’s health and wellbeing is the highest priority.
At Fletchers Solicitors we take on our clients’ fight, alleviating the stress associated with pursuing legal action.

Beneath the Jargon – We Put Medical Negligence Claims in Plain English

Claimant A good place to start! This is the person making the claim. In medical negligence cases Fletchers Solicitors only ever represents you, the claimant.

Defendant This is the individual, company, or other legal entity such as an NHS trust against which your medical negligence claim is made.

Litigation We use it so frequently, but this term simply describes the process of taking legal action through the court system.

Negligence Quite simply this refers to whatever has gone wrong. In a medical negligence case, this means the duty of care owed to you by a healthcare professional has been breached, and that this has caused you some harm.

Compensation A term you may already be familiar with, this refers to money which may be awarded to the claimant should they win their case. This includes money for injury, but also for lost earnings and other out-of-pocket expenses.

Compensation is not always awarded, however in most instances this is what your solicitor will be fighting for on your behalf.

Causation This describes the relation between the defence’s actions or breach of duty and the claimant’s injury or suffering.

It is one thing to show that something has gone wrong, but a claimant also needs to prove that this caused them harm. Your solicitor will fight to prove this link.

Breach of Duty If your care falls below a reasonable standard, the healthcare professional is in breach of his or her duty to you.

Burden of Proof If you are making a personal injury claim, the ‘burden of proof’ lies with you. This means simply that it is up to you – or your solicitor – to prove the case you are claiming, offering evidence to support your claim.

In a medical negligence claim, this includes having an independent doctor review the situation and your medical records to produce their own report.

Expert Witness This is an expert in a particular field who is asked to give an opinion in a court case. They can be appointed by the claimant, defendant or by both.

Five reasons to seek a second opinion

Fletchers Solicitors know from experience that it can be devastating to ignore those instincts which tell you to investigate something further or to seek out independent advice. Seeking a second opinion, and having a culture of openness, should be encouraged to improve patient care. Here we discuss some of the key motivations behind a second medical opinion to help you make an informed decision for yourself:

Doubting a diagnosis
It’s common to question information you hear from doctors and other healthcare professionals. Unless you are a doctor yourself, it’s likely you’ll feel removed from the process of a diagnosis, and crave information to better understand the recommended course of action. All of these reactions are normal and you shouldn’t feel you have to accept everything you’ve heard at face value. Sometimes a second opinion will simply help to validate the first, but it can also be important to help you feel confident in your decisions.

Have you been heard?
We know that health services are often stretched, overworked and understaffed. Unfortunately this means misdiagnosis or missed diagnosis are stark realities any patient can encounter. If you are not satisfied that the answers you have been given fully address your medical needs, make a follow-up appointment with your doctor to voice these concerns. They might refer to a colleague on a complicated issue, or even encourage your decision to seek a second opinion.

Know your options
While you can’t believe everything you read, it is sometimes the case that a treatment exists which might be of benefit to you that your doctor is not familiar with or does not endorse. The treatment that works for you might not necessarily suit another person in the same condition, and vice versa. Discuss treatment concerns with your consulting physician. If there is more than one treatment option available, a second opinion can help you decide which is best to pursue. Another doctor may also be able to refer you to someone who specialises in the kind of treatment you’d prefer.

The human element
Even where the duty of care owed to you as a patient is fulfilled, if you aren’t at ease talking with the person overseeing your treatment, your recovery may be compromised. It’s worthwhile seeking a second opinion to find a doctor you feel comfortable dealing with. You might get on better with someone else and have more confidence in the decisions they make about your health. If you’ve been given a life changing diagnosis, it’s especially vital that the doctor is the right one for you.

Owning your health
Whatever your diagnosis, whether you’ve been seriously injured or are facing a cancer diagnosis, for instance, you are always entitled to a second medical opinion. A good doctor will appreciate that you are interested in your own wellbeing, and that a second opinion is not a threat but an important part of the healthcare process. Most physicians encourage second or even third opinions and may be able to recommend you one.

Five ways the NHS can reduce its legal bills

Simple steps could improve the way the service manages claims, as well as to better its overall function so that lawsuits need not be filed. Finding ways to reduce the legal bills generated by action against the NHS is in the public interest.

Here, Fletchers Solicitors explore the options facing our national health care provider:

Better education
The implementation and evaluation of regular training sessions at all levels of the NHS could aid in minimising patient harm. Funds may be stretched, but closer monitoring of individuals and departments will ultimately better patient care.

Reinstating care
The Francis report highlighted the need for basic compassion in hospital care. The report suggested the entire culture of the NHS was at fault in the atrocities revealed at Mid Staffordshire. Encouraging a culture of care may not only serve to prevent problems in the first instance, it should also mean action is taken as mistakes happen, reducing their severity and likely repercussions. In this way, care could play a significant role in reducing legal action against the NHS.

Mandatory reporting
In response to the Francis report, the proposed introduction of a Duty of Candour would signify an obligation for both hospital management and staff to report failings within the NHS, irrespective of patient concern. This means instances of potential and actual patient harm may be investigated whether or not they become a claim, with the overall aim of addressing problems as they happen, instead of once they have escalated.

Support
While enforcing the obligatory reporting of technical faults, human error, or other instances in which patient safety is compromised will go some way in helping to reduce litigation, it’s believed further measures will be needed to encourage staff to speak out given the evidenced culture of silence within the NHS. Formal support for hospital staff and management would likely to assist here. This might include the introduction of mentoring programmes, as well as dedicated times to report on problems or areas of concern.

Avenues for counselling and even job protection for individuals who assist in the investigation of serious failings could also offer support.

Open communication
Exploring and nurturing channels of communication between management and staff will help to quickly identify problems, as well as to share vital knowledge and propagate best practice for patient care. Maintaining standards and continually evaluating protocol to better procedures will be key in reducing mistakes made, and subsequent litigation claims.

Six tips to prepare you and your loved ones for a spinal injury claim

Whatever the degree of physical harm experienced, it is worthwhile looking into the legal aspects of spinal injury to determine whether or not you have a case, if only to ensure you are fully informed.

Here are some points to keep in mind if you decide to explore avenues for legal action:

Instruct a specialist spinal injury solicitor
Spinal injury can be devastating, but it needn’t mean quality of life is severely diminished. Making a claim to recover medical costs and loss of income, as well as on-going living costs and expenses, is a logical step towards alleviating the financial burden incurred when a person is seriously hurt. Speaking to a specialist solicitor can provide you with impartial insight into your individual circumstance and offer new clarity on your situation, even if this does not eventuate in a compensation claim.

The SIA, the Back-Up Trust and other spinal injury charities are a valuable source of information and can provide you with useful tips and questions to ask a solicitor, as well as guidance on where to find the best advice.

Consider your immediate and future needs
Specialist solicitors will be able to advise you on all aspects of your legal entitlements, ranging from compensation claims, managing your finances, property and affairs, benefits advice, matrimonial and family concerns through to planning for the future following discharge from hospital and beyond.

Ask about rehabilitation support
Seeking legal advice is a significant step to take, but can play an important part in the rehabilitation process. An experienced firm like Fletchers Solicitors will have a network of medical, care, aids and equipment and rehabilitation experts to call upon for assistance on how best to meet your needs to maximise your recovery.

Not just about the compensation
What does your solicitor do in the spinally injured community to support individuals and improve services for those affected by spinal cord injury? You need to know that whoever is acting on your behalf not only has the required legal knowledge and experience but is also someone who actually cares about outcomes and is prepared to go the extra mile.

Experience of accommodation and home adaptations is essential
Compensation can be integral to living a full and able life with spinal injury. To facilitate wheelchair access you may need to modify parts of your home, or even move to more accessible housing. A solicitor who specialises in spinal injury claims will fight to secure adequate compensation, and will also be able to offer advice on additional resources and support available to you.

Keep a record
Make a list of questions about your situation as they arise, and share these with your solicitor. Putting something in writing can alleviate stress, offering focus for your goals for an eventual outcome. Solicitors experienced in spinal injury will be able to demonstrate how you can achieve positive results.

‘Could this be sepsis?’ A discussion with Tom and Nic Ray

Ahead of World Sepsis Day, Fletchers Solicitors spoke to Tom and Nic Ray, the incredible individuals behind the public speaking company, Resilience and co. Tom and Nic are two voices with a shared message; be sepsis aware. The following article will detail the couple’s incredible story of living with sepsis. A narrative that showcases unimaginable challenges, fighting back in the face of adversity, and together, defying incredible odds.

If you suspect sepsis, act fast!

The key theme that we need to get across is that if you suspect sepsis, or you’re in a situation where you’re medically declining, you need to get access to emergency care very quickly. Initially, my issue was that I’m a real tough guy from Essex and I’d never had any kind of illness in my life. So, I really did think I was going to be OK – I thought it was just a case of ‘man-flu’ or something similar.

But, as it turned out, it was much more serious.

In addition, The medical response was very slow. One thing we know now is that if you have got the early offset symptoms of sepsis, you need to get treatment within one hour. Otherwise, you’re going to end up with amputations, or seriously, you’re going to die.

Tom isn’t wrong.

More than 50,000 people die from sepsis every single year in the UK. Furthermore, a large proportion of those diagnosed are based in the North West of England, in Blackpool.

Tom continued:

Hundreds and thousands are suffering amputations because medical intervention is coming too late. A good analogy is that if you’ve got sepsis, you’re actually on fire. If you don’t put the fire out quickly, you haven’t got a hope in hell of surviving.

Sepsis is unique in the fact it doesn’t discriminate. Regardless of your sex, age, race or level of health, you can fall victim to the disease.

However, it can be stopped in its tracks if it’s spotted early.

When someone becomes very ill with sepsis, Tom and Nic know that within that hour, you or someone nearby must ask the question, ‘could this be sepsis?’

Our message is about getting people to ask that question. It doesn’t matter if it’s through NHS 111, a friend, their GP or through at a hospital. We want to empower everybody to be able say, ‘I am so sick, I just wonder if I have sepsis?’

 

Being unprepared for living with sepsis

Tom’s passion comes from an incredibly unique experience.

In 1999, Tom and Nic were newly married with a three-year-old daughter, Grace and baby number two, Freddy on the way. Then, almost overnight, their lives changed forever.  After a routine dental appointment, Tom suddenly developed symptoms of sepsis.

What followed changed their lives forever.

Tom spent the best part of the new millennium in hospital. This included months in intensive care, endless reconstructive surgery, and rehabilitation. Consequently, the loving husband and father lost his legs below the knee and arms below the elbow, as well as much of his face.

Tom recalls:

The worst thing was having my face amputated and having to have it reconstructed. The impact on myself has been profound, especially in terms of post-traumatic stress. Also, it’s affected my marriage, my relationships with my children and it’s destroyed my career.

I work on minimum wage in a call centre and even though I’ve got a post graduate degree we’ve worked out our sepsis experience has cost us over a million pounds. It’s been a devastating experience. I just wish I said the words out loud, could this be sepsis?

It’s destroyed my life and I’ve had to change so much and cope with so much every day. It’s a real challenge. I’ve chosen to respond to that positively, but I still feel quite angry looking back. I could easily have been one of the ones they called into A&E straight away and received the right antibiotics and walked away.

My wife’s life has completely changed. She’s lost a husband and gained another child to look after. It’s also affected my relationship with my children. When I sit there late at night, working until 10pm in a call centre, I just wonder how on earth have I ended up like this?

 

 

How sepsis can impact your family as well as your world

It isn’t just Tom who suffered as a result of his sepsis diagnosis.

Nic also experienced each challenge that came their way.

At the time of Tom’s diagnosis, Nic was 9 months pregnant with Freddy and had a two-and-a-half–year-old daughter to look after. Consequently, the life they once led changed forever.

It’s like a runaway train through your family. My career stopped dead, we had to sell the house and we had to sell the car. Not only this, we moved in with my mum. We really did have to go back to ground zero and reconstruct our lives from ruins.

You’re firefighting I’m so many levels. For example, you’re trying to look after the kids as well as Tom along with trips to and from the hospital. He was so vulnerable, and you almost had to prioritise him above your new-born because he had so many needs that you had to attend to. After that, the aftermath is enormous.

Where the couple live in Rutland, East Midlands, there are very little medical facilities within reach.

As well as that, it’s sandwiched between five counties and they would often travel to specialists in Nottingham, Leicester, Cambridge, Northamptonshire and South Yorkshire.

Nic continued:

I basically became a full-time driver to get us to all these places at the same time as having to keep a family. Moreover, everyone gets sucked into this sort of vortex. As Tom’s wife, you’re the linchpin.

You’re communicating to everybody. You’re communicating and editing stuff, you’re thinking about how to say stuff so that people can understand the importance. I found myself curating a lot, holding a lot information I couldn’t say at the time because I knew it would damage Tom’s positivity. It would be so overwhelming.

This intense micromanagement happened for a good two or three years. You just must give your life entirely to sepsis, meanwhile, your life ceases to exist. The partner of the person with sepsis must become incredibly patient. You just have to put yourself on hold. Additionally, don’t think for a second sepsis just happens to the one person, it can affect anyone without warning or obvious cause. 250,000 suffer from sepsis every year in the UK.

I ended up having to get counselling after a couple of years because I had PTSD, depression and bereavement. I just got stuck.

Everybody who meets Tom and Nic admires their openness.

In 2016, Tom and Nic joined up with Pippa Bagnall following the premier of the film Starfish in Mayfair, London. The film is an incredibly powerful portrayal of Tom and Nic’s experience of sepsis and their long journey of resilience.

Pippa is a clinician with significant experience of working in the NHS, voluntary sector and on the national and international stage.

 

Pippa said:

We’re in Blackpool this week at the invitation of the Blackpool Teaching Hospitals NHS Trust to raise awareness of sepsis and to discuss how to develop personal resilience.

One of the key messages we’ve been working hard to get across during sepsis awareness week is that everybody needs to know about sepsis. It doesn’t discriminate.

What is incredible when it comes to Tom and Nic is the fact that they are the most wonderful example of turning sorrow into positivity, especially positive thinking for others.

That has become the cornerstone of our work as Resilience + Co. We work as a trio representing the patient, carer and clinician.

There are some excellent professional educational materials on  the UK Sepsis Trust. Our aim is to spread awareness to people so they are forewarned of the signs and symptoms of sepsis.  They are:

Sudden onset of:

  • Shaking and shivering
  • Severe breathlessness
  • Low rather than high temperature
  • Rapid pulse
  • Low urine output
  • Nausea and vomiting
  • Mottled and discoloured skin
  • “I feel I am going to die”

People with sepsis can deteriorate rapidly and speedy diagnosis and treatment can mean the difference between life and death. We have thoroughly enjoyed our time working with Trevor Morris and his integrated care team on their highly effective work on sepsis awareness.

As a result of their experience, Resilience + Co are keen to spread awareness of sepsis and resilience far and wide.

And. although it’s taken a great deal of courage to get to where they are now, the love shared by Tom and Nic has planted seeds of hope where there was once scorched earth.

Tom explains:

Freddy is now nineteen and about to embark on a journalism course. One of the great things that Freddy and I have been doing together is going to see Leicester City.

From about the age of six I have been taking Freddy to see Leicester City, back when they were in League One and we’ve been to every home match ever since. We used to go to a lot of the away games as well. It was a real education for him.

One of the really touching things is that they gave him a little card saying he was my disabled carer when he was six. It’s one of his proudest possessions and he’s been looking after me at the football ever since. Even as a youngster he’d go off with the other Dads to get me a cup of tea and make sure I got down the steps and everything.

Nic was also quick to heap pride on their first-born, Grace.

Grace is now 22 and studying Astrophysics at Manchester University. Tom and I were flaky arty types, only good at English. I don’t know where these maths and science genes come from!

Tom continued:

One thing I really wanted, even in the wreckage of sepsis, was to show that I could still be a disabled dad. For example, it took a lot of courage to take the kids on the school run but I learnt how to drive even without hands and feet. I got an adapted car and I went on the school run. Standing at the school gate with children passing with an amputated face is quite a fast learning experience. Overall, It taught me a new way of being resilient.

This new concept of resilience we found is very profound and important to us. Firstly, I’ve learnt somehow not to be angry and to accept the situation that I’m in and see the advantages. It’s made me a lot better at relating to other people and understanding their problems. Everybody goes through something, whether it’s death, divorce, separation, addiction, homelessness. All kind of things that effects individuals.

I’m very conscious that everyone is going through stuff to deal with. So, if I can show that I can live a semi-normal life where I go to work, pay the bills and spend time with the kids, it’s a good example for other people to know they can deal with their situation.

Right now, it costs the NHS £15.2 billion pounds a year to deal with sepsis. To clarify, this equates to around 8% of the total NHS budget.

Although there’s still an incredibly long way to go, Tom and Nic’s mission through Resilience and co. will only improve general sepsis awareness.

 

If you have been directly affected by sepsis, please call The UK Sepsis Trust’s general enquiries number on 0800 389 6255.

If you would like to invite Tom, Nic and Pippa to one of your events please contact:

Pippa@resilienceand.co

+44(0)8750428719

Executive Director[/vc_column][/vc_row]

How Football Is Supporting Our Mental Wellbeing

By Peter Daly, Solicitor in Medical Negligence, and founder of the Talking Toffees.

World Mental Health Day is happening on Monday 10 October.

The theme for this year, as set by the World Federation for Mental Health, is ‘making mental health and wellbeing for all a global priority’ and they’re asking you to look after ‘Number 1’ when it comes to your mental health.

With everything that is happening around us right now, it can be easy to feel powerless, but there are aspects of our life we can manage and control.

The campaign wants people to embrace what is in their power to start doing, stop doing or change – something that will support their mental health.

 

Talking Toffees was established to bring people closer together, to tackle isolation, both physical and emotional.

Talking Toffees was created in July 2020 in response to the COVID-19 pandemic. The ability to socialise was removed from our everyday lives.

Personally, one of the things I was missing was going to the football with my brother and father, as well as meeting friends before and after the match. It was not the football itself, that was irrelevant in the context of the pandemic, but I missed my family and friends. The match on the weekend was when I caught up with them, walking to the ground, catching up on our week and moaning about our team’s fortunes.

A few months passed and lockdown restrictions began to ease; one of the first restrictions to be eased was being able to go back out and exercise.

So, we used social media as a platform and reached out to the community to see who would be interested in joining us for a weekly game of football. One year on, we have now evolved into a formal team and Talking Toffees is now an FA affiliated football club.

The conversation mostly revolves around the football, but more importantly, we are creating a network for people to feel comfortable to discuss mental health.

We have frequent football podcasts, inviting Everton fans from all over the world to come on and discuss what is on their mind. The conversation mostly revolves around the football, but more importantly, we are creating a network for people to feel comfortable to discuss mental health with strangers, which in turn often leads to newfound friendships.

We also have two weekly games of football, a 7-a-side on a Wednesday night in South Liverpool, the other an 11-a-side on a Friday night in North Liverpool, where we compete in the Liverpool Inclusion League. We are an open age group men’s team, open to all who wish to participate, irrespective of ability, whether it is simply to exercise or meet new likeminded people.

We have found that connecting with other people has helped a huge number of our group’s mental wellbeing.

As it is World Mental Health Day on 10th October and colleagues may be struggling, we wanted to share some tips to keep well. Always talk and do what makes you happy. There is always somebody who is ready to listen to your story. We have found that connecting with other people has helped a huge number of our group.

Another major factor for our group has been becoming physically active, it does not have to be football, a walk in the park, swimming, cycling, anything that gets you moving and out and about can help.

We are extremely grateful for the ongoing support from Fletchers

We first received funding for the team football kit, and this allowed the team to participate in competitive football matches and increase the sense of belonging within the group.

We also received funding to support our end of season awards night. It was a special evening, celebrating the team completing its first ever season. We were able to hand out eight awards to recognise the achievements of the players.

From the major to the minor, Fletchers have ensured we have been kitted out and have the necessary equipment, from first aid kit, football pump, kit bag, ball bag, to the team football kit

We are an inclusive men’s open age group and men from across the Merseyside region are welcome to come along and join our ever-expanding group.

For those interested, they can simply message us via Twitter @talking_toffees or email talkingtoffees@outlook.com.

Accidents abroad: after Brexit can I still bring my claim in the UK?

By, Mike Hagan & Sarah Prager

Now that the dust has settled on the UK’s departure from the European Union, the ‘Brussels Convention’ which was one of the main mechanisms for establishing the jurisdiction of the English Courts in respect of accidents occurring abroad, no longer applies in the UK, it’s time to take stock of the jurisdictional position.

Jurisdiction means the right to bring your claim in a particular Court. For example if an English national is injured in an accident whilst on holiday in France, he could bring the claim in France (being the place where the accident occurred) or he could try and bring the claim in the English courts (being the place where he lives).

In most cases, for UK domiciled claimants, it is preferable to bring your claim in your home courts, even if those courts will be applying the law of a foreign country, because the proceedings will likely be in English, and you will be able to instruct English solicitors on a ‘no win no fee’ basis.

This question of where a claim can be brought (jurisdiction) depends on the facts of the case.

In most cases with a foreign element, the UK courts are now applying the ‘common law’ jurisdictional rules contained within the civil procedure rules.

The common law rules are underpinned by a ‘most appropriate forum’ test. This means that in any case where they apply, you must make an application to Court and the Judge. If jurisdiction is disputed, will have to decide if you should be able to bring your claim in your home Court. The fact that there is judicial discretion means these applications are uncertain, for example one case of an accident in France, the English court may grant jurisdiction, but in another they may refuse it and saying the claim should instead be brought in France.

In two distinct categories of case, however, these rules do not apply; and it is important that people injured in accidents abroad are aware of these provisions;

In anticipation of Brexit, the Civil Jurisdiction and Judgments Act 1982 (‘the Act’) was amended to preserve the jurisdictional regime provided for by the Brussels Regulation in respect of two important areas – consumer contracts and individual contracts of employment.

Consumer Contracts

Pursuant to the Act where a consumer is resided in the UK and where the subject-matter of proceedings is ‘a matter relating to a consumer contract’:

“The consumer may bring proceedings against the other party to the consumer contract—

where the other party to the consumer contract is resided in the United Kingdom, in the courts of the part of the United Kingdom in which the other party to the consumer contract is domiciled, or in the courts for the place where the consumer is resided (regardless of the domicile of the other party to the consumer contract).”

The consumer’s choice is therefore not restricted by arguments that another Court may be a more appropriate place for the claim to be heard. The claimant can choose the jurisdiction most advantageous to his purposes, and the Defendant is powerless to escape it.

It would seem, therefore, that where a UK resided claimant, acting as a consumer, enters a contract with a foreign entity, and suffers loss during the course of the performance of that contract, he may sue the other party to it within the courts of his home domicile.

However, for this section to apply the contract, which is alleged to have been breached, must be a ‘consumer contract’

“consumer contract” means (for our purposes)— a contract which has been concluded with a person who— pursues commercial or professional activities in the part of the United Kingdom in which the consumer is resided, or by any means, directs such activities to that part or to other parts of the United Kingdom including that part, and which falls within the scope of such activities, but it does not include a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation or a contract of insurance.”

The Act therefore requires that the other party to the contract (the defendant) must direct its activities to the consumer’s domicile

In practice, it is a simple matter to show that a business directs its activities to the consumer’s home; a website offering an English language version is a strong indicator that a business is plying its trade within this jurisdiction. Some businesses, such as many offering cosmetic surgery abroad, make much of this connection; they cannot then disavow it when it comes to jurisdictional analysis. One downside to the provision is that it doesn’t apply to contracts for transport unless they are for transport and accommodation. This would seem to rule out a lot of common types of scenarios in the context of holiday accidents, for example open top bus tours.

Despite its limitations, in the experience of the authors this provision is under-used by travel litigation lawyers, and is something which should always be considered when a UK citizen has entered into a contract with a foreign entity, and suffered injury.

 Employment Contracts

The other area in which the Act confers jurisdiction over claims previously governed by the Brussels Regulation is in relation to proceedings whose subject-matter relates to an individual contract of employment:

This provision allows an employee to bring a claim in for personal injury, either in the courts of the employer’s residence, or in the courts of the place where the employee usually carries out their duties, or in the courts of the place where the business which engaged the employee is situated.

These important provisions allow employees to choose whether to sue their employers in the latter’s home residence, or in the place from which they work, or where any employment agency may be situated.

Once again, these provisions provide a simple and effective way around many of the problems experienced by employees seeking to bring claims within the jurisdiction of the UK, particularly in respect of travelling workers.

It is worth noting that the increase in working from home may bring more employees within this provision if they can reasonably be said to carry out their work routinely from their home within England and Wales. In this respect it is important to note that the accident need not have occurred during this usual work pattern but could very easily have occurred abroad.

Again, as with consumer contracts, if a claimant comes within the employment contract provisions, then have a right to bring the claim in their home courts. In the atmosphere of jurisdictional uncertainty, arising from the Brexit process, this is a right which is of significant value, and should be considered in any case in which it could be applicable.

About the Authors

Mike Hagan is a senior solicitor and head of the travel team within the flagship Serious Injuries Unit at Fletchers Solicitors. He is cited in the Legal 500 for his work, and his cases have been frequently covered by both the local and national press.

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She was recently named Travel Lawyer of the Year 2022 by Best Lawyers UK, and Personal Injury Advisor of the Year 2022 by Global 100 and Lawyer International Legal 100.

International Women’s Day 2022 – #BreakTheBias

By Maureen Ikwudirim, Solicitor/Specialist Litigator – Team 13

[vc_separator color=”custom” accent_color=”#164c48″]Imagine a gender equal world.  A world free of bias, stereotypes and discrimination. A world that’s diverse, equitable, and inclusive. A world where difference is valued and celebrated.

Together we can forge women’s equality. Collectively we can all #BreakTheBias. So, this International Women’s Day (IWD), we are celebrating women’s achievement, raising awareness against bias, and taking action for equality.[vc_separator color=”custom” accent_color=”#164c48″]

Every woman’s path is different and challenging

Every woman’s path is different and as society and technology evolves, so do the challenges for women.

For me personally IWD holds great significance as I have overcome many challenges to get to where I am today as a Black professional woman with children.

It is a day to reflect on those women who have been instrumental and the women who have been pioneers who stood for change.  It is also important because it celebrates what women have achieved as a gender and to remind ourselves to continue to actively uplift, support and motivate one another (regardless of gender).

IWD and what is stands for, is hugely important to me because it is about breaking down the bias in all areas of our lives. For me, IWD provides a much-needed space to ensure women’s voices are heard and celebrated. I hope that we can build in further opportunities for permanent, growing involvement of young girls and women at all levels and every day.

Whether deliberately or unconsciously, prejudice makes it difficult for women to move ahead.

Knowing that bias exists is not enough. Action is needed to level the playing field.  It is important for me working and raising young children to actively call out the gender bias, discrimination and stereotyping each and every time.[vc_separator color=”custom” accent_color=”#164c48″]

Dealing with bias and experiencing unfair stereotypes

I’ve had to deal with bias, sadly too many times.

I’ve experienced unfair stereotypes, prejudices, unconscious bias, and discrimination. Consequently, this has resulted in unfair expectations, unique challenges, and biased assumptions about where I fit in the workplace. I have had to navigate through these difficult and uncomfortable work situations and many times I have had to unfairly prove my worth.

The gender pay gap has always been an issue and was particularly evident during my period of maternity leave.

It made me feel undervalued, affected my confidence and my morale, which then transcended into my homelife. I had to self-advocate, which was exhausting but necessary; I have had those uncomfortable conversations regarding legal obligations.

 

International Women’s Day is an opportunity for celebration

IWD 2022 is opportunity for Fletchers to celebrate the many accomplishments that women across the firm have achieved.

The day serves as an ideal time for the firm to continue to strengthen its commitment and reinforce inclusive behaviour. The celebration also helps in understanding and appreciating the role of women within the business and in broader communities, and at the same time, highlighting that there is still so much to be done.

I am still new to Fletchers but from what I have seen so far, it is pleasing to note that there are many forums in place where employees’ voices are positively recognised. It is important for companies/firms to value diversity and to recognise the positive impact it has on employment engagement.

I also appreciate that Fletchers is releasing unconscious bias training this week, showing that it is celebrating women’s achievements, raising awareness against bias and acting for equality.[vc_separator color=”custom” accent_color=”#164c48″]

Ensuring everyone feels included beyond International Women’s Day

We all have a responsibility to ensure that everyone feels included and has a voice.

If you feel like you’re being biased against, the first point of call should be speaking to someone that you trust.

Here at Fletchers, team members can contact a Mental Health Champion for a confidential chat. You can also find out if a similar support network is available to you.

Mental Health Champions are trained to listen, empathise and signpost those who need it to professional third-party support. They do not offer advice, but instead provide a safe space for those who need to be heard in a non-judgemental environment.

Alternatively, there is also free and impartial support available through the Employee Assistance Programme, EAP, and also directly through your local NHS.

If you see something that is not right, do the right thing, be bold enough to call it out and positively help to contribute to change.

Pride Month 2022 – Celebrating 50 Years of UK Pride

By Reece Hobson-Adams, CSR Manager

This year is a significant year for the Pride movement and the LGBTQ+ community as we commemorate 50 years since the first Pride took place in the United Kingdom.

The theme for 2022 will commemorate the past 50 years and the evolution as a movement; acknowledging those torch bearers who have come before us and their achievements. As a gay man, Pride Month is an important month for me as we celebrate the progress made, but more importantly reflect on how that progress was made.

In the series of communications that we’re going to share over Pride Month, we’ll celebrate, recognise the challenges still faced by the LGBTQ+ community nationally and globally and give hope for the future.

What has changed in the U.K in the last 50 years? The proportion of the British public who say they approve of same-sex partnerships has soared over the past 30 years. 86% of the UK agreed that same sex relationships should be accepted by society, according to a 2019 Pew Research Centre poll.

This is due to changes in the law, such as in 1967 the decriminalisation of homosexual acts in private between two men, aged 21 in England and Wales. Societal attitudes changing played a big part, with the trend of social liberalisation amongst young people, who then over the last 50 years turned older and instilled these values in their children.

Legislation that has changed LGBTQ+ rights in the last 50 years: · 1980 & 1982 – Decriminalisation in Scotland and Northern Ireland

  • 1994 – The age of consent for two male partners is lowered to 18
  • 2000 – The ban on gay and bisexual people serving in the armed forces is lifted; the age of consent is equalised for same and opposite-sex partners at 16
  • 2002 – Same-sex couples are given equal rights when it comes to adoption
  • 2004 – A law allowing civil partnerships is passed
  • 2007 – Discrimination on the basis of sexual orientation is banned
  • 2010 – Gender reassignment is added as a protected characteristic in equality legislation
  • 2014 – Same sex marriage becomes legal in England, Wales, and Scotland
  • 2020 – The UK Government extends same-sex marriage to Northern Ireland, in the absence of the Northern Ireland Assembly.

Without this change in legislation and societal attitudes, I would not be able to openly live my life as my authentic self, a gay man. A recent piece of legislation that has made a difference to my life is same sex marriage coming into law in England. This allowed me on the 6th May 2022 to take the next step in our 7-year relationship and marry my now husband.

What challenges are still faced by our community nationally and globally?

There is a lot of progress to be celebrated, it doesn’t mean that we can rest on our laurels as there are still a lot of challenges faced by the LGBTQ+ community.

In the UK, homophobic and transphobic hate crimes reported to police in the UK rose sharply after lockdown restrictions eased, new data shows. However, this doesn’t give a full picture as a lot of hate crimes are not reported to the police.

Unfortunately, transgender, non-binary people and gender fluid people bare the biggest brunt of this hate, with 2 in 5 experiencing hate crime because of their gender identity in the last 12 months.

In 2021, I was the victim of a homophobic hate crime, three times, once actually during Manchester’s biggest weekend for the LGBTQ+ community; Manchester Pride. On all occasions, the perpetrators used homophobic language and tried to insult me, simply because I am gay. Luckily, I have a very thick skin, so it didn’t affect me, however that’s not the case for every LGBTQ+ person, especially young LGBTQ+ people.

It’s also really important to reference the hostile environment for Trans people in the UK. To be a Trans person (transgender, non-binary or gender queer) is to be debated, questioned and made to feel exhausted, almost on a daily basis.

For example, in the last few years, the question of should trans women be able to use women’s spaces is regularly debated, often without Trans people, even though this has been allowed legally since 2010 with the Equality Act, and no evidence that Trans women are a danger in women’s only spaces. There are also global issues for LGBTQ+ people, such as:

  • 71 jurisdictions criminalise private, consensual, same-sex sexual activity for men.
  • 43 jurisdictions criminalise private, consensual, same-sex sexual activity for women.
  • 11 jurisdictions in which the death penalty is imposed or at least a possibility for private, consensual same-sex sexual activity.
  • 15 jurisdictions criminalise the gender identity and/or expression of transgender people, using so-called ‘cross-dressing’, ‘impersonation’ and ‘disguise’ laws.
  • The Chechen Republic (Russia) routinely abducts gay men and sends to concentration camps.

However, there is progress being made across the globe, with legislation being proposed in the following countries to reverse the criminalisation of same sex relations:

  • Saint Lucia (expected by 2023)
  • Barbados
  • Jamaica
  • Saint Vincent and the Grenadines
  • Tunisia
  • Namibia

What is my hope for LGBTQ+ community in the next 50 years?

In an ideal world, every country or territory in the next 50 years will have no anti-LGBTQ+ laws, allow same-sex marriage and Trans people to self-identify with all the legal protections afforded. However, I need to be realistic. That unfortunately won’t happen in 50 years, or even the next 100 years. It will be slow progress at best, however slow progress is still progress.

As a minimum, I would like to see as many countries as possible to remove legislation that criminalises same-sex relationships and gender identity and expression. There are countries that have anti-LGBTQ+ laws on their books, but are unenforced such as Singapore, Pakistan, and Lebanon. These would be the best places to kickstart a domino effect across the globe to stop criminalising people for who they love or for living as their authentic selves.

How is ‘fault’ assessed under French Law?

By Michael Hagan, Senior Solicitor & Katherine Deal, QC

 

In a recent case pursued by Fletchers, our client was an English national, who had suffered serious injuries as a result of a road traffic collision in France. The circumstances of the case gave rise to an interesting question; How is ‘fault’ assessed under French Road traffic Law?  (known as ‘Loi Badinter’.)

 

The Collision

Our client was injured whilst on holiday in France. He was riding his motorcycle along a country road when there was a collision between his motorcycle and a large French registered lorry. Due to his injuries, he had no recollection of the accident or the build up to it. There were no independent witnesses. This mean that the only the account of the incident was from the lorry driver. The driver said he saw our client riding toward him on the wrong side of the road, neither braking nor swerving.

As a result, accident reconstruction evidence was commissioned by both parties. It found that the most likely cause was that our client was riding on the wrong side of the road and as he came around a bend, he collided head-on with the lorry. Forensic evidence suggested the lorry driver applied his brakes to avoid the collision and tried to pull over to the right-hand side.  However, further evidence showed he was only able to move a little to his right.

 

Complications to pursuing a Claim

If the claim had been subject to the laws of England & Wales, our client’s case wouldn’t have met the threshold for CFA funding.

However,  French law starts from a position in which all victims of road traffic accidents are, in principle, entitled to be compensated This was the case with our client because all he needed to show was that he was injured in a road traffic collision, and that the lorry was ‘involved’ in the accident, in order to bring a claim against the driver.

The Court of Cassation (France’s highest  Court) have previously said a vehicle shall be considered to be ‘involved’ in an accident if it participates ‘in any way whatsoever’. In a famous case In 2014, the Court of Cassation found that a parked car, which was struck by a falling kite surfer was ‘involved’ for the purposes of French law.

The wide application of ‘involvement’ provides a presumptive right of compensation to anyone involved in a road traffic collision involving other vehicles. Therefore even if you as a driver are at fault for an accident, you can sometimes recover compensation from the insurer of the other vehicles involved, even if they were innocent parties.

However, French law limits this right  by including exceptions which say faults committed by a victim can be used against them to limit or exclude his presumptive right to compensation.

When carrying out this analysis you look at the driver victim’s conduct in isolation, in other words his cause cannot be aided by pointing to faults made by the other driver(s); it is not (as in Spain) a question of exclusive fault, it is about evaluating the responsibility of the driver victim for his own misfortune

 

How is the nature of fault assessed?

As the accident reconstruction evidence became clearer (and showed without sensible wiggle room that our client had been on the wrong side of the road) a question remained: is it a subjective or an objective test?

If approached subjectively, there was nothing to show any intentional assumption of risk from our client who was unlikely to have deliberately driven into a cement lorry.  . Yet, if approached objectively, he drove into head on collision, without any justification or possible explanation for his actions.  Although he braked right before impact, it was far too late.

For our client we obtained French law advice from a French lawyer who advised that the court would likely not fully remove his right to compensation but would in fact just reduce it. This was because, by driving on the wrong side of the road he had only committed ‘one’ fault and there had been ‘’no intentional assumption of risk’’, he was not for example, speeding, or carrying out a dangerous overtaking manoeuvre. The French lawyer’s view was that it appeared likely that, from our client’s perspective, at the time of the collision he was not subjectively doing anything wrong i.e. he didn’t appreciate he was on the wrong side of the road at the time.

In support of his view the French lawyer cited a French Court of Appeal case from 2019 in which The Court approved  a decision not to extinguish the right to compensation on the grounds that ‘this fault, which did not reflect intentionally dangerous or hazardous conduct and was not particularly serious’.

However, there is also considerable force in the counter argument especially when one looks at the wording (in English translation below) of Articles 3 & 4 of Loi Badinter which concern, respectively, the potential liability of non-driver & driver victims

Article 3

The victims, are compensated for the damage resulting from the attacks on their person that they have suffered, without their own fault being able to be invoked against them, except for their inexcusable fault if it was the sole cause of the accident.

Article 4

A fault committed by the vehicle’s driver shall bring about a reduction or exclusion of his right to compensation.

The definitions make a r distinction between ‘inexcusable fault’ in the context of non-drivers and ‘fault’ in the context of drivers, suggesting driver victims’ conduct is more likely to be assessed objectively.

Overall, both subjectivity and objectivity seem to be important factors when evaluating the ‘blameworthiness’ of the victim driver claiming compensation under French law, but the system allows for compensation to be recovered in situations which, if English law applied, claimant’s would not be able to succeed.

Outcomes

Our case was settled just over a week before a high court trial, with both sides appreciating the substantial litigation risks posed to each of them, therefore a decision was not made in court. However, this remains an interesting and arguable point that does not appear to have been finally settled in French law.

Deaf Awareness Week 2022 – #MyDeafStory

By Michelle Heyes, Serious Injury Team Leader – SIU Bronze Team

Deaf Awareness Week is run on an annual basis by the UK Council on Deafness, it will be taking place between 2nd – 8th May 2022.

The theme for Deaf awareness week 2022 is Deaf Inclusion, to explore the entire theme of inclusion within our community.

The aim of the campaign is to highlight the impact of hearing loss on everyday life and increase visibility and inclusion of Deaf people.

Emphasising the importance of mental health and empathising with underrepresented groups amongst deaf people such as migrants, and women, as well as raise pertinent issues of deafness being overlooked in education, health settings and the workplace.

My 15-year-old daughter was born profoundly deaf.

She was one of the first children in this area to receive an early diagnosis through the Newborn Hearing Screening program when she was just 6 days old.

She underwent her first cochlear implant surgery when she was 2 years old and a slow switch on of the processor followed with two years of therapies thereafter.  She then had a second cochlear implant surgery when she was 5 years old.

Today she can hear reasonably well when wearing her processors and is able to communicate verbally thanks to many years of speech therapy and support from the Cochlear Implant Centre in Manchester. She is an expert lip-reader!

Deaf awareness week is a time to put the spotlight on the positive aspects of living with deafness.

When I ask my daughter about what she sees as the positive aspects of being deaf, she tells me that she loves the fact that she can “switch off the noise” and that the world looks very different and peaceful when it is silent, and she finds that she can think and focus clearly which helps with her creativity.

However, some negatives are that she can feel very isolated when people leave her out of conversations because of the extra effort it might take to explain things or because they assume she may not hear or understand what they are saying. Or, if a person shouts and talks very slowly to her in a manner that draws unnecessary attention and makes her feel stupid.

Let’s share positive, inspirational stories about living with deafness and overcoming challenges.

Recently my daughter was invited to prepare a speech for her school year as part of her English GCSE.  It was a real challenge for her, and she was incredibly nervous as you can imagine, but she didn’t shy away! She used this as an opportunity to speak about her deafness and raise awareness among her peers.

She also took part in a deaf pen pal experience through the National Deaf Children’s Society and contributed to a published article discussing the importance of making connections with other deaf people and sharing your experiences and challenges.

Deaf Awareness Week is a great opportunity to put a spotlight on challenges faced by deaf people and how positive change can happen. There is so much more that can be done to ensure that all people with a hearing impairment of any degree do not feel excluded or precluded from any opportunities or experiences.

If a deaf person doesn’t hear you properly, don’t just say “never-mind” and move on.

I want my colleagues to be mindful if speaking to a deaf or hard of hearing person of their experience of the conversation and how small adjustments that can be made to help them to hear and understand/be understood. Here are some of my tips:

  • Make sure you have the deaf person’s attention before you start speaking to them
  • Make sure you are positioned in good lighting and in good view of the deaf person to help with lip-reading
  • If you can, avoid trying to have conversations in areas that have a lot of background noise
  • Use your usual voice level and speak naturally – don’t shout
  • Be happy to repeat yourself or rephrase what you have said – the deaf person should feel very comfortable to ask you to repeat what you’ve said and equally if you don’t understand what they have said, ask them to repeat.
  • Add hand gestures or visual clues where you can
  • Speak one at a time

Including these small adjustments to your conversations will make a big difference to being inclusive of deaf and hard of hearing people.

If you need more information on how to be more inclusive, please click here.