Wilfull negligance and KC?

[GarethB]

I know this sounds odd, but I have been learning Health and Safety as part of my job.

If at work you are under HSE law required to take certain precautions to enable you to do a task safety. Deciding to ignore them and then having an accident would mean you were wilfuly neglegant and would loose up to 80% of the compensation you would otherwise be entitled too from your employer.

I know of a case where a gentleman took a short cut to get to a pub and walked down an unlight canal tow path which borderd onto a road and tripped over a mooring and broke his toe. He tried to prosecute the boat owner for failing to mark the mooring. The case was thrown out because the pedestrian was wilfully negligent because he failed to use the designated foot path which was well lit on the otherside of the road!

I wonder how this same scenario would be treated if the pedestrian had KC and without lenses would not see there was a better path to use but was in a suitable state to be able to wear lenses.

Playing devils advocate it could be argued the person with KC was wilfully negligent in failing to make sure they could see properly unless they were using a white stick at the time.

Sure this will stimulate the thought processes in our letigeous society we find ourselves in!

[Michael P]

Gareth, I think it is the duty of everybody to take reasonable care so as to avoid a third party being injured.

For example council workers must take precautions to ensure a blind person doesn't disappear down a hole during street works. In other words a hole in the pavement must be protected by barriers to protected sighted and non-sighted persons alike.

A person suffering from KC must also take reasonable steps to avoid injury both to themselves and others so the question of who has been negligent will of course depend on the individual circumstaces surrounding an incident and failing to wear lenses wouldn't automatically mean the KC'er was negligent.

I should imagine if a KC'er stepped into the road and knocked a cyclist off his bike, I should he/she would be as negligent as a sighted person. If the KC'er could not see, he should have sought help.

[Andrew MacLean]

It is worth stating here that there are several jurisdictions in the United Kingdom. The laws in Scotland and Northern Ireland are different to those in England, and the principles of law in Scotland are markedly different to those in the rest of the UK.

I agree with Gareth that we do seem to be returning to an earlier time when litigation was an early option for anyone who could afford a lawyer. With modern claims companies advertizing on television, and lawyers offering their services on a 'no-win, no-fee' basis, everybody can probably now afford the hire of the lawyer.

One caution would be the danger, in Scotland at least, of being found to be a 'vexatious litigator'. I think that the relevant legislation was the Vexatious Actions (Scotland) Act 1898. I do not know whether similar legislation applies in England and Wales or in Northern Ireland.

Andrew

[Steven Williams]

Michael Parnes states:-

If the KC'er could not see, he should have sought help.

So could you inform us Michael what should a person who has KC reasonably do to achieve a successful solution and comply with the law?

The health care system based on my 23 years experience with KC does not offer a quick fix solution.

[Michael P]

I should imagine if a KC'er stepped into the road and knocked a cyclist off his bike, I should he/she would be as negligent as a sighted person. If the KC'er could not see, he should have sought help.

Steve, I think it would be helpful if I quote the whole of my original paragraph

If somebody, for example, wants to reverse out of their driveway but a parked car obstructs there vision they must make sure it is safe to proceed with the manoeuvre even if this means seeking outside assistance.

In the same way, I believe that if a KC sufferer cannot see well enough to cross the road he/she must try and seek assistance.

It has nothing to do with complying with the law; it is to protect themselves from a civil action.

All I am saying is that imo, a KC sufferer owes the same duty of care to a third party as a fully sighted person.

This is only my opinion and I am not a solicitor and do not have legal training.

I would welcome a definitive answer.

[Steven Williams]

This is a really serious issue and really does deserve serious debate and clarification.

Based on my experience and present situation
and the fact I have to financially provide for my family if I was involved in an accident and it was proven that it was caused by inadequate vision when wearing contact lenses my defence would be that the health care system did not inform me I could not do that.

I would pass the defence of the wilful negligence on to the eye care professionals who are payed to care for our health and safety.

There are huge grey areas in this area though and it has always seriously concerned me.

A question I always have to ask (its never addressed otherwise) at my consultations is does my corrected vision satisfy the law. The past responses I have obtained have been as clear as mud in some cases:- "your borderline"
depends" if your having a good or bad vision day"

[Andrew MacLean]

Steven

If you are driving a car then YOU are responsible to be sure that your sight satisfies the legal minimum. Nobody else is responsible for this.

I am sure that this would not apply to you, but for the record it ought to be said that nobody who is driving with sight that is poorer than the legal minimum can divert blame to anyone but themselves.

As to registration as a blind or partially sighted person, the consultant ophthalmologist whom you see would be the only person in a position to make that judgement, although the decision whether or not to register, if your sight has deteriorated to that point, remains yours alone.

The problem is that we have an eye condition that gives a visual handicap. for many, but not for all, this handicap can be overcome by wearing lenses, or having surgery. Nobody in any healthcare system could give guarantees.

Andrew

[GarethB]

I posted this topic as the person who is qualified in law specialising in HSE pointed out that the law tries to cover all eventualities, but in some areas unfortunatly it is vague which usually only gets resolved after a test case.

An optopmetrist or opthalmologist as I understand it only has a duty of care to advise us if our vision is not of a standard to drive.

However under English law, we have a duty of car to ensure for example to drive that our vision is at the requierd standard.

I know saying vision is borderline is frustrating, but I know my optom can not predict if and when I will have a bad eye day. Corrected vision I get 6/4 by no means boderline. Bad eye day however with lenses I fail my a long shot!

Whenever I have been unsure about my quality of vision to drive I have always played it safe and not done so.

In a court of law;

I would pass the defence of the wilful negligence on to the eye care professionals who are payed to care for our health and safety.

I do not think would be accepted, I would have to seek clarification on this.

I think you would have prove you had been let down and that the health proffessionals were negligent and denyed you some form of care.

Don't know if you have ever seen 'The Man That Sued God!'. Basically to win, he had to prove God existed which would have meant the major religions were liable for all such failed insurance claims deemed acts of good. Very poor PR for the religions. For them to win they would have to prove God did not exist, again very poor PR for them.

The legal system is a very difficult subject, sometimes we just have to face we are in a no win situation and do the best we can. If that means a self imposed driving ban then so be it. There are schemes to help us, no public transport goes directly to my place of work, in fact it is a 4 hour journey compared to 45 minutes by car. However Access to Work should I need it will provide a taxi so I can still work and support my familly.

[Steven Williams]

Thanx for that Gareth, some useful info there re: access to work.

Yes public transport I've tried it, the train. It was so unreliable that my on line manager told me use your car like everyone else or else your sacked!

Unless you work in the public sector I would never recommend that you disclose your KC to your employer unless you have to .........all they want delivered in the private sector is solutions/the job being done at the accepted quality and on time, not further problems!

I do not think would be accepted, I would have to seek clarification on this.

I would appreciate that. If they are not telling you that you are fit to drive then surely it is reasonable to assume that you are fit to drive.

I think you would have prove you had been let down and that the health professionals were negligent and denyed you some form of care.

In my case I do feel that they have shown a lack of duty of professional care and that the system at MREH is in crisis due to a lack of management and appropriate resourcing.

For the last few consultations my wife has come into the consultation room, upon my request, as a witness to the treatment I am receiving and to the responses to the questions that I am raising.

[GarethB]

Steven,

Your employer making this comment;

Yes public transport I've tried it, the train. It was so unreliable that my on line manager told me use your car like everyone else or else your sacked!

This is discriminatory and irresposnible and I am sure you would be covered by the disability discrimination act.

I worked for 6 years in the Public sector and declared my KC and have always received help. Since then I have worked 8 years in the private sector and always decalred my KC and never had a problem.

Regardless of who I work for in the future, I will continue to declare my KC. We have more protection than we ever had before.