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Care home claims: Technical breaches not indicative of liability

  • 13 January 2021 13 January 2021
  • UK & Europe

  • Insurance & Reinsurance

Clyde & Co has recently defended a claim against a care home following a fall and subsequent death of a resident. Whilst the care home had breached duties by failing to document risk assessments, these breaches were not causative. In those circumstances, liability did not attach.

Care home claims: Technical breaches not indicative of liability

Mirroring the conclusion at the inquest, the Circuit Judge found whilst this was a tragic case, not every accident leads to culpability.

This decision demonstrates the importance of investigating cases fully and defending claims on their merits and that liability should not be admitted, as a matter of course, where technical breaches of duties are uncovered during investigations.

 

Background

The deceased was an elderly resident at the Defendant's care home. Before being admitted to the care home, the deceased had been in hospital after suffering a left-sided haematoma in a fall. She had a history of falls and collapses, including an incident in hospital where she had attempted to get out of bed and apparently slipped to the floor, notwithstanding that bedrails were being used.

One evening in mid-August 2016, the deceased was put to bed at the Defendant's care home but later found on the floor of her bedroom. She had suffered a right sided head injury subdural haematoma. She appeared to make a reasonable recovery but one week later she sadly passed away.  

 

Risk assessment

The son-in-law and daughter of the deceased brought a claim against the Defendant. A number of allegations were made including a failure to conduct proper risk assessments which they claimed would have established the need for bedrails or a pressure pad which would have triggered an alarm when the deceased got out of bed. The Claimants also questioned whether hourly observations which were meant to take place had taken place. It was their case that if any or all of these steps had taken place the deceased would not have fallen.

The Defendant's evidence was that the use of bedrails had been considered but identified as an additional risk. There was however no documented evidence to confirm this. Pressure mats had been trialled but were considered an additional trip hazard. Regular checks had taken place but these were not documented.

Separate liability expert evidence was obtained by both parties.

 

Judgment

The claim was dismissed. The Judge concluded there was no act or omission by the Defendant that had caused or contributed to the death of the deceased.

The Defendant was found to be in breach of duty in not having documented risk assessments in relation to bedrails or the provision of a pressure mat. However, the Judge accepted the Defendant's evidence that bed rails were inappropriate. Although not documented, the Judge accepted the Defendant's evidence that there had been a discussion about and trial of pressure pads. The Claimants' expert conceded that in these circumstances a pressure pad would be regarded as inappropriate and an unacceptable hazard. 

The Judge also found that there was no evidence to suggest that observations were inadequate and, on the balance of probabilities, a better system of observations would not have prevented the accident. It was noted that a "fall can take place very, very quickly indeed".

 

What we can learn

  • Cases of this nature can be difficult to defend. They are often sensitive involving elderly/vulnerable individuals.
     
  • Investigations can be hampered as a high turnover of staff is common in the industry and so it can be difficult to trace witnesses and secure witness statements. In this case we were fortunately able to trace and obtain robust witness evidence. Early identification of witnesses and securing detailed witness evidence should be a priority.
     
  • Expert evidence in cases of this nature can be helpful (especially where full documentation is not available) to crystallise the issues and assist the Court in terms of what is good practice and, as in this case, confirm that no other steps could or should have been taken. 
     
  • Document retention can also be problematic. However as in this case, even if written evidence of risk assessments and the like cannot be located, this may not automatically mean there has been a causative breach. Great caution should be exercised when considering any admission. As this case shows, a full defence can still be maintained provided that there is alternative evidence of compliance and/or where there is evidence that a fully documented risk assessment would not have resulted in any change in process.

End

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