We occasionally get calls from our clients, stating that they have received a claim for compensation arising from either an accident or injury that the employee (Claimant) is alleging happened at work and is, therefore, the fault of the Employer (Defendant). The caller is often very indignant about the personal injury claim, as they do not believe such an accident or injury happened at work, and is invariably cross with the employee. The first advice we have to give is to park the emotion, as one is entering into dangerous employment law territory if an employee can prove they suffered a detriment arising from submitting a health or safety concern, or in this case, a health & safety legal compensation claim. The second piece of advice we give is to contact the appropriate insurance company, and follow their instructions.
Given the ease of access these days to ‘no-win, no-fee’ solicitors, the increase in personal injury claims has meant that employers’ liability insurance premium has increased for many organisations.
This newsletter will briefly summarise some of the key information regarding the legal principles behind personal injury claims, and what action is required when a claim is received, as well as some good practice that will help to defend these claims.
Employers must comply with:
- The Employers’ Liability (Compulsory Insurance) Act 1969, which makes it compulsory for organisations to have employers’ liability insurance.
- The requirements of the Civil Procedure Rules (as amended by the Woolf reforms).
- The Health and Safety at Work, etc. Act 1974, the Management of Health & Safety at Work Regulations 1999, and indeed, all other health and safety regulations under which claims may also be made, if the regulations state that civil liability may arise.
Duty of Care
The leading case for personal injury claims was established in 1932 with Donoghue v Stevenson (1932), where it was deemed a duty of care is owed to “neighbours”. The case described neighbours as being those who we could “reasonably foresee” could be affected by our “acts and omissions”. Typical neighbour relationships include:
- employer to its employees
- employer to others’ employees
- employer to contractor
- occupier to authorised visitors or even unauthorised visitors, e.g. trespassers
- employer to members of the public
The common law duty of care owed by an employer to its employees was further defined in the case of Wilsons and Clyde Coal Co v English (1938). In particular, this case decided that the employer’s duty of care to its employees was personal to the employer, and could not be delegated to, for instance, a Manager or other employees. Additionally employers must provide:
- a safe place of work and equipment
- safe systems of work
- reasonably competent employees
These two cases are regularly cited in claims for personal injury. Since then, other cases have gone further in defining the true implications regarding the common law duty of care. If the employer knows of a condition in an employee that makes that employee more susceptible to injury, or makes the consequences of injury more severe than usual, extra precautions must be taken, as stated in Paris v Stepney Borough Council (1951). Therefore, employers must take into account any significant “special needs” in an employee, and take extra precautions. Employees with “special needs” could be:
- disabled employees and/or with serious medical conditions
- employees with learning difficulties
- young and inexperienced workers
- pregnant employees
Employers must also consider the mental well-being of their employees, such as work-related stress. The case of Walker v Northumberland County Council (1995) was developed further in Sutherland v Hatton (2002), when the Court of Appeal cited 16 practical propositions related to stress, including that employers should not have to pay compensation for stress-induced illness, unless such illness was reasonably foreseeable. This is not the ‘get out of jail free’ card that it initially sounds to be, as there is a lot within those 16 practical propositions that an employer must still do.
As these claims are bought in the civil courts the law of tort, i.e. ’wrongdoing’, will be used. Two particular torts are usually used, namely the tort of negligence and the tort of breach of statutory duty.
The Tort of Negligence
A claim for compensation based upon the tort of negligence requires that all four general conditions must be proved by the Claimant, as part of a causal chain, these being that:
- A duty of care must be owed by the Defendant (employer) to the Claimant (employee); and
- The duty of care must have been breached. (Did the employer do enough to take reasonable care? Often proved if sufficient records exist of good health & safety practices); and
- The injury or loss suffered by the Claimant must have been due to the breach of duty of care. (Was the injury or loss related to the acts or omission of the employer rather than an activity or incident which occurred out of work in the employee’s personal time?); and
- The injury or loss to the employee must have been a reasonably foreseeable consequence of the employer’s acts or omissions.
The Tort of Breach of Statutory Duty
An alternative route when making a claim for personal injury is for the Claimant to show that the Defendant was in breach of a relevant statute, and, therefore, liable to pay compensation. This was established in Groves v Lord Wimborne (1898), when a boy had his arm amputated due to an unguarded cogwheel when working at the Defendant’s factory. It was held that the applicable statute required the secure fencing of dangerous parts of machinery, and, therefore, the statute was relevant to the boy’s civil claim.
However, section 69 of the Enterprise and Regulatory Reform Act came into force on 1 October 2013, amending s.47 of the Health and Safety at Work, etc. Act 1974, which, up to that time, meant there was a legal presumption that all health and safety regulations involved civil liability, unless expressly excluded. The 2013 Act reverses this presumption, so now no regulation will impose civil liability unless there is express provision to that effect. There will be no civil enforcement for breach of health and safety regulations. In reality, this means that Claimants have to rely on actions for common law negligence.
Additionally, this means that the burden of proof, instead of being on the employer to show what steps were taken to protect an employee, has now shifted to the employee to prove negligence. Prior to the 2013 Act, employees needed only to show that a machine was inadequate or defective, but now they have to prove that an employer could, and should, have spotted the defect before the incident, and rectified it.
Finally, it is worth remembering that the enforcement of health and safety regulations is in the domain of the Health & Safety Executive (the HSE).
One of the more important defences is that of “contributory negligence”, which permits the amount of compensation to be reduced if the employee was partly to blame for an accident through their own negligence. For example, if a Claimant failed to follow the employer’s procedures or defined working practices, e.g. not following what they were trained to do, or, not wearing the protective clothing or equipment provided for that job then their actions amount to contributory negligence, leading to any damages award being reduced. Where it can be shown that the injury sustained was due to the sole fault of the Claimant, the Defendant may not be deemed liable at all, but 100% contributory negligence rarely happens.
We recently wrote a detailed article on vicarious liability so, a brief recap, is that in some situations an employer could be deemed liable for the negligence of its employees with respect to some other person being injured. The key conditions for vicarious liability to third parties are that:
- the employee must have been negligent
- the employee must have been acting in the course of employment, in other words, acting on behalf of the employer
The Supreme Court has recently given judgment in two landmark cases involving vicarious liability. The first, Mohamud v Morrison Supermarkets plc (2016) concerned an attack on a customer by an employee of Morrisons, where the Supreme Court ruled that the company was vicariously liable because the attack was sufficiently closely connected to the employee’s work. The second case is Cox v Ministry of Justice (2016), where the Catering Manager at a prison was injured when a prisoner dropped a sack of rice onto her. The Supreme Court ruled that the Ministry of Justice (MOJ) was liable to compensate her stating that it was fair, just and reasonable to impose liability on the MOJ.
Timescales Limitations for Claims
Any action for personal injury, or death, must be commenced within three years from the date of the accident, or where the Claimant first became aware of the injury, i.e. the date of diagnosis by a medical practitioner. In the case of a death, the Fatal Accident Act 1976 allows close relatives to make a claim on behalf of the deceased. Courts do have discretionary power to override the three-year period where it is equitable to do so.
Damages can be considerable under two headings:
- Pecuniary: these involve monetary losses, such as loss of earnings, medical and travel expenses. It is the loss of future earnings up to retirement that can involved the biggest part of a damages claim especially if the Court accepts that the Claimant will not be able to work again.
- Non-pecuniary: these involve compensation for pain and suffering, and loss of amenity, such as changes to lifestyle, e.g. being stuck in a wheelchair.
New rules have existed since 1999, following on from Lord Woolf’s enquiry, which introduced a number of “pre-action protocols” to provide for the early exchange of information. Parties who fail to comply with the protocols can be penalised by the Courts. A summary of the intended sequence of events are:
- Letter of claim sent and received
- Defendant must at least acknowledge receipt within 21 days
- Claim investigated
- Admit liability and settle out of court
- Deny liability, either completely or partially
- Relevant documentation disclosed
- A “statement of truth” must be signed by someone from the defendant’s organisation
Letter of Claim
Following the decision to make a claim, the Claimant, or more usually their solicitor, must send two copies of a standard “letter of claim” to the Defendant. The letter contains information relating to the general circumstances of the claim, including the nature of any accident, a description of injuries sustained, and the documents which the Claimant would like to be disclosed. The Defendant must acknowledge the letter of claim within 21 days. If the Defendant does not reply within this timescale, the Claimant will be entitled to begin legal proceedings, and the Court will take into account the fact that the Defendant did not follow the protocol’s rules. This puts an important onus on employers to react quickly to letters of claim.
From 1 August 2013, Claimants in employer personal injury claims of up to £25,000 have had to use a Government claims portal although disease-related claims are excluded. The aim of the portal is to manage personal injury claims efficiently and quickly. It operates by way of a system of notifications and responses, which are input into the portal by the Claimant and the Defendant, or its insurers. A Claimant who is seeking compensation for a personal injury claim must register the claim on the portal by completing and registering a Claim Notification Form, which is like a letter of claim. It must include sufficient information for the Defendant to investigate the claim. If liability is admitted, the claim stays within the portal. If liability is denied, or an allegation of contributory negligence is made, the claim falls out of the portal to be dealt with in the normal way.
A Claimant can remove a claim from the portal if there are complex issues of law, or fact. The intention of the portal is to assist in the settlement of straightforward personal injury claims quickly, and within a framework of low fixed costs.
The Government has recently proposed reforms of the procedure for low value personal injury claims. The main aim of the proposals is specifically to reduce the number of road accident fraudulent whiplash claims, but, if and when the proposals are implemented, they are likely to also impact claims for workplace injuries.
Information that Defendants must disclose
Following the initial acknowledgement by the defendant of the letter of claim, the Defendant has three months to investigate the claim before replying. The protocols set out in some detail specific information that Defendants must disclose. For workplace injury claims, this includes:
- Accident book entry
- Any first aider report
- Any initial management report
The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) require that certain accident/injuries must be made to the HSE, so it is important to retain a paper copy of that report as well.
Where specific regulations apply, the protocols require additional documents to be produced. For example, in respect of the Management of Health and Safety at Work Regulations, the following should be disclosed:
- pre-accident risk assessment required by regulation 3
- post-accident risk assessment required by regulation 3
- accident investigation report
- any appropriate health surveillance records required by regulation 6
In cases where the Control of Substances Hazardous to Health Regulations (COSHH) is relevant, a similar disclosure of documentation is required by the protocols. This includes:
- the risk assessment complying with the requirements of regulation 6
- documentation relating to the maintenance of personal protective equipment
For claims involving the Workplace (Health, Safety and Welfare) Regulations, the documents required to be disclosed include:
- repair and maintenance records required by regulation 5
- housekeeping records to comply with regulation 9
You need to be aware that if the employer is unable to produce the relevant documentation, it may make fighting the case much harder, and your insurance company is more likely to want to settle the case. The argument being to have complied with the law, then appropriate records must be able to prove it.
Where the pre-action protocols do not result in agreement or settlement, the case will be allocated to one of three “tracks”:
- Small claims track jurisdiction, with a financial limit of £5,000.
- A fast track for relatively straightforward cases up to £15,000, with strictly limited timetables set up by the Court.
- A multi-track for cases over £15,000, providing hands-on management by the Court.
This should help achieve quick settlements of cases by the Courts.
Tips to help successfully defend a Claim
Having a good paper trail of evidence on all of the above and, indeed, other health & safety matters, e.g. regularly reviewed health & safety policy, annual health & safety actions plans etc., will help to make a difference. Other suggested actions include:
- Make sure that what is said happens in the health & safety policy and associated policies and procedures, do indeed happen in practice, by regularly inspecting and periodically auditing all activities.
- Ensure that health and safety is talked about regularly at either Board/Senior Management level, alongside other key business objectives.
- Make sure that people are encouraged to report accidents, incidents and even near misses, in a spirit of openness and transparency. Clients that tell me that they never have accidents are just kidding themselves, they do, they are just not recorded which is far more concerning.
- After an accident happens, ascertain immediately who did, or did not, see the accident, and get signatures under each heading. Ask witnesses to write down as soon as possible exactly what they did see, before they have a chance to revise or tone down what they saw, in order to minimise getting others into trouble.
- Investigate any accident or injury that becomes RIDDOR reportable, and make sure the report is not focused on blame, but is rather all about better understanding how the accident happened and, as a result, what improvements could take place.
- Make sure that important records, such as risk assessments, safe systems of work, safety action plans, induction checklists are not only kept, but are up-to- date and easily retrievable.
- Make sure additional records, e.g. individual risk assessments or return to work programmes, are kept for those people with “special needs”, such as young persons, the disabled and/or people with serious medical conditions.
- Have robust recruitment and selection procedures, including identifying in job descriptions where there are specific and objectively justifiable criteria, e.g. certain levels of physical fitness or mental robustness.
- Check out whether future Managers understand their health and safety responsibilities, and what have they done to reduce known risks in previous jobs.
- Use the discipline procedure for breaches of health and safety procedures and protocols, e.g. where people won’t wear PPE, or take unsafe shortcuts in working practices.
- Train all staff to make sure that they can do their jobs safely. Train Managers on the additional duty of care responsibilities that they have towards their team(s).
- Write into all Management job descriptions health and safety responsibilities, and include health and safety objectives in any formal performance management reviews.
Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.