If you are a salon owner, tattoo artist or aesthetic practitioner that has been presented with a formal injury claim it can be a worrying time. Even the most reputable and experienced practitioners can still be subject to a compensation claim if a customer feels that you are responsible for them being injured after a treatment or procedure.
Fortunately, this is what your business insurance is for, and your policy should provide legal representation to respond and deal with the claim. However, insurance for businesses that perform cosmetic procedures is far from straightforward, with many standard public liability insurance policies excluding on-body treatments. So, if you now find yourself having to consider and deal with a cosmetic injury claim, it can be helpful to know about some of the common defences that may be raised. Contributory Negligence.
Contributory negligence is a legal argument that states that a person who is injured has themself also contributed to the damage that was inflicted or at the least to the severity of the injuries. So, if the injured claimant did not take reasonable care for their own safety, they may not seek full damages from the defendant.
For example, if a client undergoes a non-surgical cosmetic procedure and alleges that they are injured as a result of the aesthetic practitioner's negligence. But the customer also failed to follow the provided aftercare instructions which would mitigate the risk of any adverse reaction. The practitioner may be able to argue that the customer was contributory negligent for the injury that was ultimately sustained. If successfully proven, contributory negligence can result in a percentage decrease on any compensation that is awarded. Assumption of Risk.
Assumption of risk is another legal defence that basically asserts that a person who voluntarily takes a risk may not be able to recover damages if they are injured as a result of taking that risk.
For example, if a customer is advised that a procedure carries an increased risk, such as a piercing or tattoo in an unusual area and is subsequently injured. A defendant may be able to argue that the claimant knew, assumed, and voluntarily took the risk that the potential injury may occur. This defence is known as 'Volenti non fit injuria' which is Latin and translates as 'to a willing person, injury is not done'. Need advice on defending a cosmetic treatment, piercing or tattoo injury claim?Personal Injury Defence LawyersLack of Duty.
Lack of duty can be raised if a person does not owe a duty of care to another person, so essentially there is no legal responsibility between the two parties. If a defendant does not have a professional relationship with the claimant, they may not owe them a duty of care and therefore may not be liable for any injuries that the claimant suffers.
For example, if a client is injured during an eyebrow tinting procedure and brings a claim against the salon owner. If the salon owner simply rents out space to the beauty therapist that performed the procedure, they may not be considered to have a professional relationship with the injured person and be able to argue that they did not owe a duty of care to them. While any building owner must still ensure the safety of visitors to their premises (under The Occupiers Liability Act), if this defence is successful the claimant may choose to redirect their claim to a party that owed them a duty of care for the procedure. Such as the self-employed practitioner that they contracted with and actually performed the procedure or treatment. Legal Advice on Defendant Cosmetic Injury Claims.
If you are a business owner or practitioner that has received a Claim Notification Form or Letter of Claim from a law firm, you should seek your own independent representation as soon as possible. You should also retain all documentary evidence relating to the incident such as patch test results, consent form, pre-appointment questionnaire and details of any products or equipment that were used in the procedure.
Addressing allegations of negligence and establishing fault (liability) are not straightforward matters and specialist legal advice should be obtained before responding. A solicitor that specialises in defending cosmetic injury claims will be able to consider the specific circumstances around the alleged incident and advise you appropriately on the potential defences and your liability position.
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Applications for pre-action disclosure can be common in personal injury claims where a party (most often the Claimant) seeks specific information from the opposing party (the Defendant).
If you have received a pre-action disclosure application ('PAD') in relation to a personal injury that has been alleged against you or your business, usually your insurer will be dealing with the claim and so will have appointed legal representation. Your solicitors should therefore respond on your behalf to comply with the process. However, if you do not have insurance to cover the claim or solicitors acting for you, it is important to understand the basis for the application and respond as soon as possible. Pre-Action Disclosure Application on a Personal Injury Claim.
PAD's are usually issued by a Claimant's solicitor when the Defendant has been unresponsive or has refused to provide information that has been requested.
A solicitor acting for a Claimant can request copies of all relevant information relating to the alleged incident that led to the injury that the Defendant possesses or that is in their control. This information is then used to assist them in evaluating the prospects and liability of any claim. The legal basis and procedure for the disclosure of documents is detailed in section 7 of the Pre-Action Protocol for Personal Injury Claims and section 31.16 of the Civil Procedure Rules. Depending on the type of claim (accident at work, dog bite etc.) the evidence that can reasonably requested may include:
A PAD should not be the first correspondence you will receive regarding a claim, as a Letter of Claim or Claim Notification Form is usually sent beforehand. This will have detailed the specific allegations of the claim and often requests that the additional information is provided or at least preserved (i.e., CCTV footage not be deleted). If this information isn’t forthcoming, then the Claimant's solicitor may write again threatening an application for pre-action disclosure and putting you on notice that you will be liable for the costs incurred if an application must be made to the Court. You should seek legal advice as soon as possible to comply with the request and to avoid having to pay these additional costs. What is included in a Pre-Action Disclosure Application?
When a PAD is made, the documentation you receive can consist of the Application Notice, a Witness Statement, Order/Draft Order, copies of previous disclosure requests, and sometimes a notification to attend a hearing.
The Witness Statement will detail the attempts the Claimant's legal representatives have made to obtain the documents, the exact documents that are being requested and why these should be disclosed. The Order (or Draft Order) will state what timeframe the documents should be provided in and the costs the Claimant is now entitled to receive from you as a result of having to make the application. Responding to a Pre-Action Disclosure Application?
It is advisable to obtain legal advice to deal with the threat of a PAD or the application itself. It is a formal legal document that has been made to the Court and should be treated seriously.
A Defendant personal injury solicitor will then be able to advise on the validity of the application, assist in complying with the Order and arrange representation at any application hearing (should one be required). Failure to fully comply or respond to the application and subsequent Order can result in the Claimant's solicitor seeking a Penal Notice, which warns a Defendant that they may face further sanctions which could be as serious as imprisonment or other punishment that is permitted under the law. Need advice on defending an injury claim?Personal Injury Defence Lawyers
If you purchase a second-hand item from a business, trader or charity shop, the consumer rights that you are entitled to are extremely similar to those you have when buying an item that's brand new. Namely the goods should be:
These rights in the UK are defined in the Consumer Rights Act and cover any purchase from a trader made since October 2015. If you discover a fault with an item, this act gives you the right to return it for a full refund within the first 30 day of purchase. After the first 30 days (but within the first six months) you can still return the item, but you must give the retailer the opportunity to replace or repair the fault. After six months, to return the item you must prove that the fault was present when it was first purchased, which can be more difficult if a product was second hand or pre-owned from the outset. Second hand products may have imperfections and faults that are attributed to normal wear and tear. In some cases, there may be quality issues with a product due to its age and how it has been previously used. When considering the laws on buying second hand goods and your consumer rights, it's important to remember that second hand products or refurbished goods do not have to be of the same quality as new items. Therefore, you cannot simply reject an item because it is not of the same standard as you would expect if it was brand new. Fit for Purpose with second hand goods.
Fit for purpose means that the item must function correctly and last for a period of time that is 'reasonable'. In relation to used goods the item should function fully for the purpose it was designed and sold for. However, being a used item, it may show signs of being pre-owned and not last as long as you would expect a brand-new item to last.
For example:
Satisfactory Quality with second hand goods.
Satisfactory quality is basically a standard that a reasonable person would consider as being acceptable taking into consideration the item's description, price and circumstances of the purchase. It is most often relating to a product's appearance, freedom from defect, durability and safety. Obviously, the quality of an item can be subjective, but your expectations should generally be lower if you are purchasing an item that has been previously used.
For example:
As Described with second hand goods.
As described means that an item must be accurately advertised and described by the trader. If you asked questions about the product in store prior to purchasing, such as its warranty status, service history or how it currently operates, the information given should all be correct. Likewise, if the salesperson advises you of a fault with an item, then it is 'as described' and you can't reject it due to it having the fault.
For example:
Warranty on second hand goods.
Warranties or guarantees are an optional addition to your legal (statutory) rights as a consumer.
Warranty can be provided by the manufacturer as part of the product or able to be purchased separately and ran by a third party (e.g. used-car warranty, extended appliance guarantee etc.) Your eligibility to claim under the warranty will depend on the warranty policy's terms and conditions, however it is not uncommon for there to be numerous exclusions. These can range from the age of the item (12 months from original purchase), where it was purchased from (an authorised retailer or dealership), being conditional on regular maintenance (serviced every year) or limited to certain faults (excludes wear and tear). Another common exclusion is that you must be the original purchaser or at least have proof of the original purchase, such as a receipt. The specific warranty policy needs to be checked to confirm if an item is eligible for a repair or return. But it is always worth checking especially on recently manufactured products. Section 75 protection.
Depending on how you paid the retailer for your purchase, and if no warranty is available, there may also be some additional protections available known as Section 75. This section of the Consumer Credit Act basically means that any credit provider involved in the purchase shares responsibility if things go wrong.
Therefore if you made the purchase with a credit card, store card or car finance agreement, you should contact your card issuer or finance provider to see if there is any action they can take. Do you need legal advice on a consumer dispute?Consumer Rights AdviceBuying second hand goods online.
When buying second hand goods online, over the telephone, at home, or through mail order from a retailer you will also benefit from additional protections. Namely the Consumer Contract Regulations, or to give it its full name The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
These regulations cover what was previously known as 'Distance Selling' and provides some extra rights, even when purchasing a used product. These rights include:
The retailer is entitled to expect that anything sent back is returned in the exact condition as it was received. This can sometimes be a point of dispute when returning second hand goods as they are likely to have not been in original packaging etc. in the first instance. An important point to remember when buying second hand products online is that not every website purchase is classed as buying from a business. When you buy from sites such as eBay, Facebook Marketplace, Gumtree, Shpock, Vinted or Amazon Marketplace you will need to check if the actual seller is a business or trader. As if they are a private individual, then consumer rights and contract protections will not apply to your purchase. However many online trading sites do have their own buyer protection policies and dispute resolution processes which may be able to be used. Consumer Rights and private sellers.
If you purchase items from a private seller via a web advertisement, local newspaper ad or car boot sale it is important to be aware that you don't have any consumer rights. For the Consumer Rights Act to apply you need to be an individual making a purchase from a business.
If you do buy a second-hand item from a private individual it only has to match any advertised description. This limited protection falls under The Misrepresentation Act for when an untrue fact or statement is made by the seller to convince a buyer to make a purchase. A private seller isn't under any obligation to tell you about any faults or defects, and there's no requirement for the item to be of satisfactory quality or suitable for any specific purpose. So, as you may have heard, purchasing from a private seller is a matter of 'buyer beware'. You should check the product thoroughly to ensure you are 100% happy before buying it. For example:
Legal advice on second hand rights.
In the majority of cases once you make the retailer aware of the fault, they should deal with your concerns inline with your consumer rights. If they refuse, the next step is escalating the matter as a complaint and then involving any associated ombudsman which should be detailed in the retailer's terms and conditions.
If all these steps fail, your only available method of resolution may be to start court proceedings. If the value of your claim is less than £10,000, it will be treated as a 'small claim' which means there are set fees to issue the claim and only limited legal expenses are able to be added (see our guide on how much does it cost to take someone to court). Therefore if the value of your consumer claim is significant, it will be worthwhile seeking legal advice on your dispute before beginning court action to ensure the consumer laws are on your side. |
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