Legal Principles Surrounding Slips Trips and Falls Anne

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Legal Principles Surrounding Slips, Trips and Falls Anne Conlon LLM MSc MA Barrister-at-Law

Legal Principles Surrounding Slips, Trips and Falls Anne Conlon LLM MSc MA Barrister-at-Law

INTRODUCTION 1. The Law on Falls • Who is Responsible? • What is Negligence?

INTRODUCTION 1. The Law on Falls • Who is Responsible? • What is Negligence? • What is the Duty of Care? 2. Hazards • Preventative Measures 3. If Legal Action is Taken? 4. Cases 5. Reducing Liability 2

The Law on Falls 1. The Law on Falls • Who is Responsible? •

The Law on Falls 1. The Law on Falls • Who is Responsible? • What is Negligence? • What is the Duty of Care? 3

The Law on Falls Common Law Duty of Care Ø Tort Ø Personal Injuries

The Law on Falls Common Law Duty of Care Ø Tort Ø Personal Injuries Claims Statutory Duty of Care Ø Safety Health & Welfare at Work Act 2005 and related regulations Ø Occupier’s Liability Act 1997 Contractual Duty of Care Ø Two fold – with service user/patient and service level agreements 4

The Law on Falls – Responsibility? Ø Will depend on the circumstances of the

The Law on Falls – Responsibility? Ø Will depend on the circumstances of the incident – may be Occupier and Service Provider - if not one and the same Ø Employees are not individually responsible – doctrine of vicarious liability 5

The Law on Falls Negligence • There are four elements in the tort of

The Law on Falls Negligence • There are four elements in the tort of negligence: 1. Duty of care, i. e. the existence of a legally recognised obligation requiring the Defendant to conform to a certain standard of behaviour for the protection of others against unreasonable risks; 2. Defendant’s actions must fall below the required standard (act or omission) (Breach of duty of care); 6

The Law on Falls – Negligence 3. Must be a causal link (either legally

The Law on Falls – Negligence 3. Must be a causal link (either legally or factually) between the Defendant’s actions and the Plaintiff’s injury (Causation); 4. A sufficiently close causal connection between the conduct and resulting injury to the Plaintiff (Remoteness). 7

The Law on Falls – Duty of Care • • Sections 18, 19 and

The Law on Falls – Duty of Care • • Sections 18, 19 and 20 of the Safety, Health and Welfare at Work Act 2005 set out duties in respect of hazard identification, risk assessment and safety statements. The law requires employers to: Identify the hazards 2. Carry out a risk assessment 3. Prepare a written safety statement 1. 8

The Law on Falls – Duty of Care In this context a hazard is

The Law on Falls – Duty of Care In this context a hazard is something with the potential to cause harm (for example, chemical substances, machinery or methods of work), while measuring the risk depends on: 1. The likelihood of that harm occurring; 2. The potential severity of that harm (the degree of injury or ill health following an accident); 3. The number of people who might be exposed to the hazard. 9

The Law on Falls – Duty of Care Relevant Regulations 1. The Safety, Health

The Law on Falls – Duty of Care Relevant Regulations 1. The Safety, Health and Welfare (General Application) Regulations - require that floors of rooms shall not have dangerous bumps, holes or slopes and that they be fixed, stable and not slippery 2. Regulation 18 of the General Application Regulations says that every place of work should be kept clean and accumulations removed as frequently as necessary 10

The Law on Falls – Duty of Care Occupiers' Liability Act, 1995 “Occupier”, in

The Law on Falls – Duty of Care Occupiers' Liability Act, 1995 “Occupier”, in relation to any premises, means a person exercising such control over the state of the premises that it is reasonable to impose upon that person a duty towards an entrant in respect of a particular danger …. . …and, where there is more than one occupier of the same premises, the extent of the duty of each occupier towards an entrant depends on the degree of control each of them has over the state of the premises…. . 11

The Law on Falls – Duty of Care Occupiers' Liability Act, 1995 Duty owed

The Law on Falls – Duty of Care Occupiers' Liability Act, 1995 Duty owed to visitors set out at section 3 of the Act: In this section “the common duty of care” means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in the company of another person, the extent of the supervision and control the latter person may reasonably be expected to exercise over the visitor's activities) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon. 12

Hazards 1. The Law on Falls • Who is Responsible? • What is Negligence?

Hazards 1. The Law on Falls • Who is Responsible? • What is Negligence? • What is the Duty of Care? 2. Hazards • Preventative Measures 13

Hazards - Specific to a Healthcare Setting Unique risks arise e. g. capacity/competence of

Hazards - Specific to a Healthcare Setting Unique risks arise e. g. capacity/competence of patient/resident Must be adequately engaged with… Different environments e. g. hospital vs nursing home – consider core differences Review and implementation of risk assessments and policies key to resisting and reducing legal liability 14

Hazards – Preventative Measures Sometimes no way to completely mitigate the risk Legal liability

Hazards – Preventative Measures Sometimes no way to completely mitigate the risk Legal liability – asks how was the risk assessed and dealt with? Will consider what mechanisms have been put in place – a very practical assessment of the liability of the service provider 15

Hazards – Preventative Measures 1. Policies 2. Procedures 3. Implementation 4. Staff training 5.

Hazards – Preventative Measures 1. Policies 2. Procedures 3. Implementation 4. Staff training 5. Adherence to statutory duty 16

Legal Action 1. The Law on Falls • Who is Responsible? • What is

Legal Action 1. The Law on Falls • Who is Responsible? • What is Negligence? • What is the Duty of Care? 2. Hazards • 3. Preventative Measures If Legal Action is Taken? 17

If Legal Action is taken…. 2 years – (date of knowledge) 3 years –

If Legal Action is taken…. 2 years – (date of knowledge) 3 years – clinical negligence (not yet commenced) Circuit High Court – up to € 60, 000 Court – over € 60, 000 18

If Legal Action is taken…. ‘clinical negligence’ means anything done or omitted to be

If Legal Action is taken…. ‘clinical negligence’ means anything done or omitted to be done in the provision of a health service by a health service provider in circumstances which could give rise to liability for damages for negligence in respect of personal injury or death; 19

If Legal Action is taken…. ‘clinical negligence action’ means an action for the recovery

If Legal Action is taken…. ‘clinical negligence action’ means an action for the recovery of damages brought— (a) by or on behalf of a person alleging that he or she, or a deceased person of whom he or she is a personal representative, has suffered personal injury or death as a result of clinical negligence, and (b) against the health service provider alleged to have committed the act or omission giving rise to liability or any other person alleged to be liable in respect of that act or omission; 20

CASES 1. The Law on Falls • Who is Responsible? • What is Negligence?

CASES 1. The Law on Falls • Who is Responsible? • What is Negligence? • What is the Duty of Care? 2. Hazards • Preventative Measures 3. If Legal Action is Taken? 4. Cases 21

Cases v 82 year-old woman died after falling from a hospital trolley – having

Cases v 82 year-old woman died after falling from a hospital trolley – having spent the night on a trolley in ED - She had suffered facial injuries from a fall at her nursing home and was receiving treatment in the ED - The High Court was told the side bars on the trolley were left down and she was left unattended despite it being known she was at risk of falling - Court approved settlement - € 51, 000 22

Cases v Cork nursing home, sued by the family of a 89 year old

Cases v Cork nursing home, sued by the family of a 89 year old woman who suffered fractured ribs and facial lacerations as a result of a fall from a bed on the 8 th February 2011 Ø She was taken to Cork University Hospital but died there on the 22 nd March 2011 Ø 2015 - Court awarded € 48, 000 23

Cases v 79 year old woman – history of falls – routine surgery in

Cases v 79 year old woman – history of falls – routine surgery in Mater Hospital – in Recovery – left unattended – got up and fell – fractured her spine Month in hospital – 3 months in Cappagh Court awarded = € 58, 500 24

Cases v January 2020 Man found dead with suspected broken neck beside his hospital

Cases v January 2020 Man found dead with suspected broken neck beside his hospital trolley at UHL Limerick Leader 25

Cases v 87 year old man lost case for fractured pelvis against James’s Hospital

Cases v 87 year old man lost case for fractured pelvis against James’s Hospital From nursing home – high risk – orange wrist band – hip protectors – beside Nurses Station – fell going to toilet in early morning – properly assessed as high falls risk Court held - nothing more that hospital could have done = No Negligence 26

Cases will frequently settle – and may not make the news 27

Cases will frequently settle – and may not make the news 27

Reducing Liability 1. The Law on Falls • Who is Responsible? • What is

Reducing Liability 1. The Law on Falls • Who is Responsible? • What is Negligence? • What is the Duty of Care? 2. Hazards • Preventative Measures 3. If Legal Action is Taken? 4. Cases 5. Reducing Liability 28

Reducing Liability ACTIVE ENGAGEMENT! 29

Reducing Liability ACTIVE ENGAGEMENT! 29

Reducing Liability Ø Accidents happen… Ø There may be no negligence… Ø Risk assessment

Reducing Liability Ø Accidents happen… Ø There may be no negligence… Ø Risk assessment specific to each patient/service user Ø Falls Prevention policy is crucial 30

Reducing Liability WHEN A FALL OCCURS Ø Appropriate and immediate response Ø Document the

Reducing Liability WHEN A FALL OCCURS Ø Appropriate and immediate response Ø Document the particulars surrounding the fall Ø Consider learning opportunities on review – was the incident preventable? Ø BE PROACTIVE IMPLEMENT CHANGE! 31

Thank you Anne Conlon LLM MSc MA Barrister-at-Law

Thank you Anne Conlon LLM MSc MA Barrister-at-Law