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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46806
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I own a laser clinic, I had a lady work with me, but she was

Customer Question

I own a laser clinic, I had a lady work with me, but she was self employed.
She badly burnt a client who has subsequently taken it up with a solicitor. The self employed lady turned out to have no insurance and therefore we have tried mine but the claim was refused.
I have received a letter from the claimants solicitor stating that they find me personally liable for the compensation and court costs.
As I didn't carry out the treatment and the other self employed lady did, where do I stand in this??
Thank you.
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. I presume yu had control to an extent over her activitie and what she did in the job?
Customer: replied 2 years ago.
Hi there, thanks for getting back so quick!
Yes, I controlled the bookings and appointments
Expert:  Ben Jones replied 2 years ago.
There could be liability on an employer’s part through something known as ‘vicarious liability’. This is a common law principle of strict, no-fault liability for wrongs committed by another person and is basically a form of secondary liability. In an employment relationship, it involves making an employer liable for the wrongs committed by an employee where there is a sufficient connection with the employment and can arise even if the employer has committed no wrong. This is a rather complex area and there are many examples that could apply and various factors that could swing this in either direction. Our service may not go far enough to conduct a full and detailed case analysis in order to determine with certainty whether vicarious liability would apply here so I will have to discuss the general law with you just to give you an idea of where you may stand.
The distinction between an employment relationship and someone engaged as an independent contractor (on a contract for services) is very important. The general rule has always been that no liability arises for the negligence committed by an independent contractor, something confirmed in the case of D & F Estates Ltd v Church Commissioners for England.
However, this has been challenged in a more recent case (JGE v The Portsmouth Roman Catholic Diocesan Trust). The issue remains that there are no hard and fast rules for when a relationship can be considered akin to an employment relationship. In the JGE case, however, one of the factors which the judge considered was whether the employer had control over the worker and whether he was accountable to the organisation in terms of how he did his job. Similarly, if that person’s day to day activities were a central part of the organisation’s ‘business’, and that they were integrated into the structure of the business were crucial and could give raise to an argument that this was an employment relationship, in turn making the employer vicariously liable for their acts.
So as you can see it is a complex area of law and no distinct rules are established, often coming down to small technicalities to determine whether you have any liability as an employer. The key however is to try and show that there was no employment relationship, to try and distance yourself from the activities performed by that person.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46806
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Customer: replied 2 years ago.
Sorry meant to ask, if I am found liable, the claim submitted to my insurers was for under £10k.
What am I likely to be faced with? Out of court settlement is preferable but I have no money, rent my house, and all machines are leased? How would it be calculated?
Thanks
Expert:  Ben Jones replied 2 years ago.
If the claim was for less than £10k then this would be assigned to the small claims court and if you lose then you would only really be made liable to pay the value of the claim. Each party would bear its own legal costs so you would not have to pay for these. You are likely to have to pay their claim fee and court fee, which will just be another few hundred on top. If they win it does not mean that they will just get what they have claimed and the court could adjust that, usually reducing it, rather than increasing it. What they get really depends on the injuries suffered and what costs have been incurred as a result so they will need to provide evidence to back up what they are claiming.
Customer: replied 2 years ago.
Ok thank you, ***** ***** of all of what you have said, however I can't help but feel that this should be a joint case of sueing both myself and the self employed lady as surely she has a responsibility to ensure she has the proper insurance in place? I know I should have asked for a copy but as she was a friend, I trust her!
Expert:  Ben Jones replied 2 years ago.
any liability here would be joint and several, so they can sue you both but if one cannot pay or are found not guilty then the full liability can shift to the other party. That is unless you can show that you would have no vicarious liability as per the considerations mentioned above.
Customer: replied 2 years ago.
Ah ok, so would their solicitors make that decision? Or would they try me, if I couldn't afford it, then try her??
Expert:  Ben Jones replied 2 years ago.
They could make a claim against you and her together or against each of you separately ... Up to them really so time will tell

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