In a negligence action for medical misadventure the prime risk the plaintiff carries is the burden of proving that the defendant has acted negligently. Once a duty of care and causation are established, liability is proved. There is still the need to quantify damages, however, the common law takes into account non-economic loss when quantifying compensatory damages for personal injury. Whether or not the case can be proved and damages won is a risk the plaintiff must take. Under the ACC legislation plaintiffs like Mrs Matheson faced no such risk. Those who had spent their lives at home as wives and mothers knew for certain that all they would receive at most (medical treatment and rehabilitative care aside) was a lump-sum payment, based upon the AccidentCompensation Commission's assessment of an appropriate percentage of $17,000 for loss of body parts and a similar percentage of $10,000 for pain and suffering. For those men who lost their wives to cervical cancer section 82 of the 1982 Act provided a maximum lump-sum of $4,000; those children who lost their mothers to cervical cancer were entitled to $2,000 with a maximum cap of $6,000.
In assessing suitability for CARS, a Claims Assessor must now consider “whether the claim involves issues of liability, including issues of contributory negligence, fault and/or causation”. These amendments remedy the Smalley defect and will mean that a greater number of matters will be kept within CARS, supporting the broader scheme objective of resolving the majority of claim disputes out of court.
Cover for people injured in so-called ‘blameless accidents’ was introduced in 2006 through s7B of the Motor Accidents Compensation Act. The examples always cited for its application are that of a driver who has a sudden medical event, and where an animal runs onto the road. In 2012, the Court of Appeal decision in Axiak v Ingram determined that a vehicle/pedestrian accident could be a ‘blameless accident’ even if the pedestrian was partly at fault (contributory negligence), as long as there was no fault on the part of a driver. If deemed ‘blameless’, notwithstanding that the pedestrian is to blame, the pedestrian may be able to access damages.
 If … the purpose of the medical treatment is to prevent pregnancy from occurring and by reason of medical error that purpose is not achieved, it does not seem to us that, just because the pregnancy then occurs as a biological process, there should be no cover for the consequences. The development of the fetus following impregnation occurs because of the medical error, just as in the case of the undetected tumour. It causes significant physical changes to the woman’s anatomy, which of course occur naturally but still cause discomfort and, at least ultimately, pain and suffering. If a disease or infection consequential on medical misadventure can be classified by the statute as a personal injury, it does not involve any greater stretching of language to similarly include a pregnancy which has the same cause. We should add that it can make no difference that the direct cause of the pregnancy is an act of sexual intercourse which occurs separately from the negligently performed operation. The pregnancy is still caused by the surgeon’s negligence, and would not have happened without that negligence.
past five decades. Not only have thousands suffered respiratory illness as a consequence of breathing the microscopic fibres of blue, brown and white mineral which were mined, mashed and woven into hundreds of fire-retardant products. Thousands more continue to fall victim to the highly malignant tumour of the pleura known as mesothelioma. The number of casualties from this extremely painful and usually inoperable cancer are likely to peak only in the next two decades. As litigation against the manufacturers of asbestos goods began in earnest after 1975, millions of documents have been collected by prosecutors and defenders of those charged with wilful negligence. Most famously, the case brought by Chase Manhattan Bank resulted in the microfilming of a voluminous amount of paper relating to the British firm which dominated world production by the middle of the twentieth century, Turner & Newall. These materials have provided much of the substance for the scholarly debates, mirroring the legal contests undertaken in the past three decades on behalf of those suffering the loss of life, health and resources as a result of the toxic properties of this ‘‘magic mineral’’.
The need for clear boundaries is similar to the Woodhouse principle of administrative efficiency, which requires that benefits are distributed rapidly and without contention, but is more extensive than the original principle. 92 Clear boundaries are essential because the scheme's financial viability rests on a quid pro quo calculation that generous and comprehensive compensation is feasible due to the absence of costly and time-consuming litigation. Money spent by ACC litigating contentious cases reduces the funds available to compensate claimants. The interpretation of physical injury adopted by the court should mark clearly where entitlement ends and therefore limit the number of cases contesting where the precise boundaries of the scheme lie.
On the face of it and from an economic perspective, bringing auto insurance premium rates more into line with insurer-measured experienced costs is desirable. With reference to Figure 4, lowering insurance rates per car 22% for a majority of cars that were not involved in an accident in any way would be acceptable to the public—by itself. But this rate reduction could not happen in isolation; the reduction would depend on raising premium rates by 50% for the large minority of cars involved in an accident. The half of this minority that was involved in an accident and found at fault appears to accept such surcharges now, probably owing to the stigma of having negligently “caused” the accident. The other half of this large minority, however, would be being asked to accept a 50% surcharge because another car negligently ran into them. That would be an insurmountable political barrier to insurers openly rating on the basis of not-at- fault accidents. Of course, the very strong predictive correlations that insurers experience in their claim data are so compelling that insurers are motivated to take such information (from, for example, third party claims their insureds have made against other insurers) into account in their underwriting decisions.
damages was based on a negligent failure to warn her that the sterilisation operation might not be successful. Baragwanath J's discussion of the law in that case has been described as unhelpful because his Honour appears to have confused pre1992 law and post1992 law. 82 Baragwanath J first asked whether the wife had suffered a "personal injury by accident". It was only after deciding that she had suffered a "personal injury" but not an "accident" that his Honour considered medical misadventure. In his view, there could be cover on that basis. However, under the 1992 regime that was being discussed, "personal injury by accident" and "medical misadventure" were mutually exclusive. 83 "Accident" under the Act excluded anything that was treatment by a registered health
Developments in Northern Ireland
5.13 NIAO welcomes these various initiatives to enhance quality and standards of care. The Department informed us that these form part of a much wider agenda to achieve improvements in services and in the experience of individual service users. Some of this on- going work is outlined in paragraphs 5.21 to 5.28. However, when reviewing these matters with the Trusts, there was little evidence of sharing between providers of initiatives taken to date. This lack of information sharing increases the risk of the same mistakes and failings being repeated across the HPSS, and also the risk of staff, who change employers, repeating those mistakes. This can be illustrated by an example given to us by a provider of legal services, who informed us that they had been consecutively reviewing files relating to different claims against different Trusts and noticed the involvement of the same doctor in both cases of alleged negligence. 5.14 Providers suggested that the existence of clinical incident reporting systems was no guarantee that all appropriate incidents were reported. Also, the current arrangements had no provision for incidents to be centrally reported to a regional body. In relation to protocols, they advised that protocols did not extend to a number of long-established procedures. The Department said that more could be done to ensure consistency across the service and in central reporting of untoward incidents.
example, the intention of the accidentcompensation scheme is not to cover those who drive safely, but still suffer injury (as some, statistically speaking, must, given the number of cars on our roads). The intention is to cover everyone who is injured on the road, regardless of their fault or standard of driving, because bad driving is part of the consequence of allowing driving in the first place. In the same way, the pharmaceutical industry and the methods of drug testing mean that some companies may use unapproved trials. This is an unfortunate side-effect of the drug industry as a whole. To eradicate it completely, we would need to eradicate the drug industry. Thus ACC should provide compensation for those who are injured in the course of unapproved clinical trials, regardless of their consent to the risk of harm.
The Meaning of the Term "Accident" in the Indiana Workmen's Compensation Act
F. Joseph Jaskowiak
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Section 138. Witnesses; Subpoenas; Depositions; Discovery (85A O.S., 317). An arbitrator has subpoena authority to require the attendance of witnesses and production of documents at a hearing. An arbitrator may permit a deposition of any witness to be taken for use as evidence at the hearing, if the deposition will make the proceeding fair, expeditious and cost effective. The arbitrator has discretion whether to allow discovery, taking into account matters of fairness, efficiency and cost. If discovery is permitted, the arbitrator may oversee the prehearing process and enforce discovery-related orders in the same manner as would occur in a civil action. The same rules in civil actions apply to arbitration proceedings for compelling a person under subpoena to testify and for compelling the payment of witness fees for attending depositions or discovery proceedings. The Workers’ Compensation Commission may enforce a subpoena or any discovery-related order issued by an arbitrator in an arbitration proceeding in another state upon conditions determined by the Commission so as to make the arbitration proceeding fair, expeditious and cost effective.
crimes such as homicide, sexual violence, domestic violence and child abuse are included. European countries differ in their dental damage evaluations as well as having significant differences in the requirements needed to become a registered EW in Court. In this preliminary work the authors investigate the principal differences in appointing an EW in the judicial systems of Italy and in Croatia with the purpose of widening this investigation to European countries in order to marshal knowledge towards harmonization, best practice and a common ground for dental evaluation and claim compensations (in accordance with the Council of Europe Resolution 75 – 7 Compensation for physical injury or death). 1
We desire to make an observation about the level of damages claimed. Mrs Ellison has sought leave to bring a claim for $250,000. Even if the conduct of the respondent had been outrageous and deserved to be marked by an award of exemplary damages, a claim of this size would be quite unrealistic. As far as we are aware, Judges in this country have restricted such awards to a mere fraction of the sum claimed here (for example, in McLaren Transport where apparently gross negligence in the inflating of a tyre caused serious injury $15,000 was awarded). They have been right to do so. The marking out and punishment of outrageous behavior can be adequately achieved by a relatively modest penalty. It is to be remembered that such awards are not intended as compensation.
These are highly scary statistics. Over 80% of these accidents are blamed on driver errors 91 . There is therefore enough justification for the hard-line approach taken against drivers when it comes to compensation. However, driver errors seem not to be the only cause. The bad state of our roads is a major call for concern. Sometimes, the roads are just too narrow for a highway 92 . More should be done to increase the sizes and quality of our roads. Finally, the hosts of kangaroo driving schools that exist everywhere in the country equally play a great role in facilitating the occurrence of motor accidents around the country. It is common place nowadays to see people possess driving licenses obtained by the aid of driving schools for which they have no knowledge whatsoever about driving. Such persons are largely responsible for many of the motor accidents on our roads today. Others learn driving from car washing points while some learn from mechanic workshops. Until stringent measures are taken by the State to keep such clowns off our roads, valuable lives will always be at the mercy of impostors. It is the opinion of this researcher that strict control measures should be put in place to regulate the activities of driving schools and to curb all corrupt and illegal practices of theirs. By so doing permission to operate driving schools should be given to persons deemed worthy and of good moral and legal standings. There is equally a necessity for strict follow up of driving school activities and impromptu on the spot checks and controls, for the law is only there to compensate the victims instead of tackling the problem from its roots. After all, it is often said “prevention is better than cure”, therefore “a stitch in time will surely save nine”.