Dear Mr Hansford,

As per the meeting and discussion that we had on 5th April 2016 at our offices, we are setting out our legal advice for your situation in this letter. As we had a detailed discussion on the situation you find yourself in with the injury you have suffered and your inability to go back to work, we are able to consider the legal issues that are involved and the steps that can be taken to resolve the situation that you find yourself in.

As you are claiming that the personal injury is attributable to your employer, it is important for you to be able to prove that your injury was caused by the negligence of your employer. This is a standard requirement in all accident compensation claims. Therefore, in order to make a personal injury claim against your employer, you will have to prove the following:

  • Employer owed a legal duty to care towards you
  • Employer breached the legal duty
  • You suffered an injury as a result of that breach
  • The detriment caused to you is attributable to the employer’s breach of duty
  • You have suffered some loss as a result of the breach of duty.

These are the legal concepts related to negligence. We offer you a brief explanation of these concepts as follows. Generally speaking, employers have a duty to protect their employees from accidents and injuries at workplace. This duty arises from both the common law and statuary law. This duty includes the duty to ensure that the workplace is kept in a safe condition.

Employers owe a duty of care towards their employees. These duties include the duty to protect the health, safety and welfare of their employees. Employers must make every reasonably practicable effort to achieve this. The reasonable practicality requirement involves consideration of the gravity, nature and imminence of the risk and its consequences as well as the nature and proportionality of the steps by which such risk is addressed. Employers must sure that their employees are protected from anything that may cause harm or injury to them. For this effective risk management has to be undertaken by the employer. The law on health and safety also makes this a statutory obligation for the employer. The duty of care to the employees are taken very seriously by the law and these are non-delegable duties, which means that these duties cannot be delegated to anyone by the employer.

Your proof of evidence indicates that there have been complaints against the security guards, regarding their failure to prevent fights at the bar. Moreover, underage persons have also been known to be allowed into the bar despite there being a requirement of all patrons allowed to be over the age of 21 years. Despite this, it appears that the Mansion owners have not taken serious steps to rectify the situation. A proper risk assessment would have made the owners of the Mansion aware that due to laxity of security, miscreants would enter the bar and their

employees were at a risk from such miscreants. There have been similar cases, where the courts have held employers liable for a breach of duty for failing to do proper risk assessment that would allow them to anticipate the risks that their employees faced at the workplace.

During the meeting and in your proof of evidence you have clarified that you had worked as a barman at The Mansion Tavern (‘The Mansion’) in Brentwood, Essex for 3 years, when you met with the personal injury. You have clarified that on Thursdays your work started at 5 pm and continued till 1 am. 1st August, 2016 being a Thursday, you were on duty at the time when the fight broke out in the pub. As per your proof of evidence, your duties required you to remain in the main bar till 8 pm after which you would proceed to the night club bar upstairs to prepare the bar for opening. It is not clear who was in charge of the downstairs bar once you proceeded upstairs. Were you responsible in some way for the main bar after setting up the nightclub bar for opening at 10 pm? The reason why this question in important is because it will strengthen your personal injury claim against the nightclub if you can show evidence that the injury was caused during the course of your employment. Some of the most important evidence that you would have to submit to strengthen your case is that contained in your medical records. As you have suffered head injury requiring 50 stitches to your forehead, this is a serious injury. Moreover, you have also suffered flashbacks and have been diagnosed as having post traumatic stress. The medical records from the night of the accident as well as medical records post the accident referring to the post traumatic stress disorder are essential to making your claim. Moreover, we advice you to see a GP again and get latest diagnosis records, since you are claiming an inability to go back to work seven months after the accident. This is important because you are attributing your inability to work and make a living to your injury, sue to which you are seeking compensation from your employer. An important method of gathering evidence that would go in your favour would be through locating witnesses who saw the incident or are otherwise aware of relevant details. You mention the Disc Jockey, John Whelan and that he heard that the miscreants had been refused entry on a number of occasions before and were known to be troublemakers. Can you possibly get more information from him? As of now, the statement he makes is secondary evidence, because he has heard the fact. If we can know from whom he heard this fact, we may be able to get direct witnesses and this will help strengthen your case. It is important for you to note that you can also make a personal injury compensation claim if your workplace accident or workplace injury was caused by the negligence of another member of staff. The new guard, Paul Wyatt is also an important witness, as he can affirm to the fact that the other guard, Gina Osbourne had not reported for duty at the time. The actual complaints filed against security guards are also important for establishing the negligence of the Mansion owners in continuing with security that was not performing its duties properly. Your employers are vicariously liable for the negligence of the security guards and other employees. Therefore, they cannot escape their liability for the wrongful acts of the other employees. Your proof of evidence also mentions that the the CCTV footage of the incident shows the glass shelf collapsing with ease and that the vodka bottles, which also fe;; and broke on you were not secured in way. This is also a breach of duty of care on the part of the employers. Proper risk assessment would have shown the risks involved in keeping empty bottles on flimsy shelves. However, you also mention that you have not as yet seen the CCTV footage. We would require this footage as this is an important piece of evidence showing negligence by the employer. Health and Safety law makes strict requirements for the employers to ensure the safety of their workers at their work place. Your proof of evidence does not say anything about an accident book at workplace. It is important that your injury has been formally reported to the Mansion. This is usually done through an accident book. If there was no accident book at workplace, then we hope that you made a record of the accident details and sent these to your employer. If not, we urge you to do so now and keep a copy of the record for yourself. The record should mention briefly the events of the day as you remember them, the injuries suffered by you and the medical attention given to you. This record will be relevant if the case moves to litigation. It is important to note that there are strict limitations with respect to time period within which to making injury claims. These limitations are also relevant to compensation claims for workplace accidents or injuries. Therefore, timely action on your part is of paramount importance. As the injury happened on August 2015, 8 months have already lapsed without any legal compensation on your part. Time limit in negligence cases is 3 years. We have to ensure, that court proceedings must be issued within three years from the date of your suffering injury. Litigation may be a lengthy and costly affair. It is our duty to apprise you of the fact that should you choose to take this matter to court, there will be legal fees that you would have to bear. Considering the fact that you are nearing the end of your statutory sick leave period, and the fact that you find yourself unable to take up employment due to your medical condition, you may find that an option of an amicable settlement with your employer a more appropriate response at this stage. If you are interested in a settlement with the the employer, we will be available at your service to commence the proceedings with the employer. At the initial stage we will send a claim letter to your employer. This letter will detail the incident and claim the employer liability for your personal injury due to negligence. The letter will also give the time period within which the employer has to respond to the claim. In general this period will not be more than three months. If the employer replies in the affirmative to the liability for personal injury, then we may proceed with an out of court settlement. This would require us to make an offer, which is called a Part 36 Offer. This offer notes the settlement amount that you think is a reasonable settlement for your injury and damages. We will help you compute this amount with the help of experts who will determine the nature of your loss and the loss of earnings. The Part 36 Offer will be communicated to the employer. If the employer agrees with the amount, then we can close the settlement. The employer may even make their own Part 36 Offer to us. This is a counter offer. Should you find the offer reasonable and choose to accept it, we can accordingly bring the settlement to a close without going into litigation. The above mentioned situation is ideal. However, it is not necessary that negotiations for settlement will always be fruitful. The employer may refuse to accept liability to the claim letter. The employer may accept liability, but reject your Part 36 Offer as unreasonable and make a counter offer to you, which you may find unreasonable. In such an event, the only recourse open to you would be to take the matter to court. As mentioned earlier, litigation may be an expensive option. However, if you have you have a legal expenses insurance policy, you would be able to defray the costs of litigation through your policy. Alternatively, if you are a member of a Trade Union, the Union may also be able to come to your aid for legal expenses. Apart from the evidentiary requirements mentioned earlier in this advice, we would also need any proof of your loss of earnings and other financial expenses that are due to your injury. This will help us in advising you as to the Part 36 Offer that we should make on your behalf. Even if the matter moves to litigation, we must be ready with the financial details, as these will help greatly to determine the compensation amount to be given to you. If the matter moves to litigation, we will apply to the relevant court of jurisdiction. The court will give the date of hearing on which we have to appear before it. In such situations, we will always inform you well in advance of court dates and explain the legal procedure involved at each step. We will charge you conditional fee as per a conditional fee agreement, wherein you would have to pay us the fee only when you win your case for compensation. We hope that this initial advice has helped you to understand your legal rights and the cause of action that has arisen due to the breach of legal duty by your employer. We have explained the nature of this duty, the legal options available to you and the process that is involved in these options. Should you have any further questions or need further clarifications, please approach us and we will do our best to clarify these questions for you.

Bibliography

    1. Barclay L, UK Law and Your Rights For Dummies (John Wiley & Sons 2011 )
    2. Morissette EL, Personal Injury and the Law of Torts for Paralegals (Aspen Publishers 2008)
    3. Walten C (Ed), Charlesworth and Percy on Negligence (2nd Supplement, Sweet & Maxwell, 2012)
    4. Wilson S, Mitchell R, Rutherford H, Storey T, Wortley N, English Legal System (Oxford University Press 2014)

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