Common Legal Questions

Question of the Week – Employers rights when an employee suffers a non-work related injury

George asks: 

My Chef went in for a simple Hospital day procedure, which he had authorised leave for. The anaesthetist punctured his retina by mistake causing damage during the surgery. We then had to drive him for corrective surgery at the Sydney Eye Hospital a couple of days later. We have not been able to open our kitchen for over a week now as we do not have anyone who can cover for our employee and it looks like we may have another two weeks of closure as a result. This injury has caused a significant loss income for the business due to the kitchen closure. As the employer, do we have a case against the doctor?

Brydens Lawyers’ answer: 

If your Chef is able to establish, ultimately to the satisfaction of the court, that the anaesthetist was negligent then he would have available to him a valuable claim for damages given the serious nature of the injury that he had sustained. The mere fact that there was damage occasioned is not in itself sufficient to establish an entitlement to a claim. What needs to be proven, ultimately to the satisfaction of the court, is that the anaesthetist did not act with all due care and skill in accordance with peer professional opinion.

Strict time limits apply with respect to the making of such a claim and we would invite your Chef to contact Brydens Lawyers at his earliest convenience for the purpose of making a no obligation, no cost initial consultation with one of our expert lawyers.

As to whether you can claim for the injury to your employee, that is a per quod servitium claim, it is difficult to advise. To a large extent these claims have been restricted in New South Wales by virtue of legislation and judicial determinations. It is something however that should be considered and we would be happy to do so for you.

We invite you to contact Brydens Lawyers on 1800 848 848 at your earliest convenience to speak with one of our experts.

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