Have you Taken Precautions to Safeguard Your Business Against Personal Injury Claims?
Social media and advertising have now made individuals aware of their rights to claim compensation if they have been injured and believe that someone else is to blame.
When a personal Injury claim is made against a business, either by a member of the public or an employee, it can be an intimidating prospect thinking about how to defend an allegation. This is particularly challenging when you believe that the person’s injury claim has little or no merit.
Managers and business owners need to have a general awareness of the possible areas to defend a case and mitigate the costs of compensation.
Compensation Recovery Unit Performance Data
Year Employer Motor Other Public
2018/19 89,461 660,608 7,614 85,472
2017/18 69,230 650,019 19,172 96,067
2016/17 73,355 780,324 20,047 85,504
2015/16 86,495 770,791 11,388 92,709
2014/15 103,401 761,878 12,972 100,072
Conceding or rejecting liability in an injury claim.
When a compensation claim is received, the question of liability must be considered. Liability is whether the defendant is legally responsible for the incident and the resulting injury and can also be thought of as being at fault, whether in part or in full.
When a claim is made the business can either:
- Admit liability (they were fully at fault for the accident)
- Admit partial liability (they were only partially at fault for the accident)
- Deny liability and defend the claim (they were in no way at fault or disputes it occurred)
If a business admits full liability, then the claim will come down to the amount of compensation the injured party is entitled to. This amount can still be disputed (i.e. expenses are not justified) or negotiated (an early out of court settlement) to minimise the cost.
If the business denies liability or only admits being partially at fault, then a defence to the claim must be entered and there are several broad areas of defence that can be explored.
Determining the facts and challenging the claim.
For a successful compensation claim the injured party must prove:
- The business had a legal duty of care towards the claimant
- The business acted negligently so was responsible for the accident or incident
- The injured party sustained injuries were caused by the accident or incident
Manager & business owners can dispute any of these facts, ranging from how the accident occurred to proving that the injuries and financial losses were not a direct result of the accident.
In cases such as a fall on business premises, the business may be able to produce CCTV or maintenance records to evidence that there were no hazards in the area and as such were not negligent.
Health and Safety policies, procedures and training can be comprehensively relied upon when defending a claim that has occurred at a public place or place of work. It is imperative that these records are documented and kept up to date to be allowed as fundamental evidence in any defence.
Defence against personal injury claim.
If the business concedes liability, there is still the opportunity to dispute what is known to as ‘causation’ and dispute that not all the injuries and losses suffered by an individual were caused by the business’s negligence.
An individual party must provide evidence to prove that the injuries and losses they are claiming have been caused directly due to the business.
if an individual has suffered a back injury but has a pre-accident history of back pain, then medical evidence will be required to support that the accident was the root cause of all their ongoing injuries and losses.
The business may dispute that the accident occurred and argue that the injured party is acting deceptively. If there is evidence that supports this then not only can a case be dismissed, but the individual may find themselves prosecuted and found ‘fundamentally dishonest’ forcing them to pay legal costs.
Alternatively, it may be that there was an injury which was caused by the accident however the business can demonstrate through expert evidence that the individual is exaggerating symptoms and losses.
This issue addresses the difficulty of allocating proportional blames against both parties, particularly in circumstances where the question of blame is not entirely clear.
In cases such as traffic accidents, contributory negligence is often applied where the injured person did not wear a seatbelt. The at fault party may have caused the accident, however the injuries sustained were in part due to the claimant’s negligence. By way of example, if an individual was awarded £3,000 but was found to have been 25% to blame, only £2,000 would need to be paid.
If contributory negligence can be proved, another party (i.e. the manufacturer of faulty equipment), it can have a dramatic impact on any compensation awarded.
If the injured party was unfit (drink & drugs etc) or failed to follow procedures or prescribed working practices, or not wearing the protective clothing or equipment provided, then these failures amount to contributory negligence. Where it can be shown that the injury sustained was due to the sole fault of the injured party, the business may not be regarded liable.
A business could be regarded as liable for the negligence of its employees where a fellow employee or some other person being injured. The fundamental 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
Information that Businesses must disclose
For workplace injury claims, this includes:
- Accident book entry
- Any first aider report
- Any initial management reports
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 Management of Health and Safety at Work Regulations apply, 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
Contesting a Personal Injury Claim
An inadequately defended claim can cost a business significant time and money. In extreme circumstances it may result in business closure. Defending a misplaced cause is unlikely to be cost effective, however, a thorough and meticulously scripted defence and evidence trail can mitigate any compensation a business is exposed to. It is well documented that some individuals wait until they have left the employment of the business before submitting a claim. It cannot be emphasized enough, that any incidents or accidents must be thoroughly investigated, including obtaining CPR (civil procedure rules) complaint witness statements. Once an individual has left the employment of the business, such opportunities are lost.
A strong and robust response with a reliable evidence trail can see off unjustified claims and challenge those where there are conflicting factors putting a burden on the Claimant to prove their claim.
Tips on Preventing or Mitigating A Claim
A reliable paper trail of evidence on all the above supplementary health & safety matters, e.g. regularly reviewed health & safety policy, annual health & safety actions plans etc., will be beneficial.
The following actions are recommended:
- Make sure that what is documented in the health & safety policy and any associated policies and procedures, is followed in practice, by regularly inspecting and periodically auditing all activities.
- Regular safeguard meetings at Senior Management level, together key business objectives.
- Ensure individuals are encouraged to report accidents, incidents and even near misses, in a spirit of openness and transparency.
- Following any accident, establish immediately who did, or did not, see the accident, and get signatures under each heading. Ask witnesses to record as soon as practical 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 ensure the report is not focused on blame but rather understanding how the accident occurred and, consequently, what safeguards can be put in place.
- Ensure that essential records, such as risk assessments, safe systems of work, safety action plans, induction checklists are not merely kept, but are maintained up-to- date and easily retrievable.
- Ensure records, such individual risk assessments or return to work programmes, are maintained 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, particularly identifying in job descriptions where there are specific and objectively justifiable criteria, e.g. certain levels of physical fitness or mental robustness.
- Assess Managers understand their health and safety responsibilities, and what have they done to reduce identified risks in previous roles.
- Apply discipline procedures for breaches of health and safety procedures and protocols, e.g. where individuals refuse to wear PPE, or take hazardous shortcuts in working practices.
- Train the workforce to ensure that they can do their jobs safely. Managers must be aware of the additional duty of care responsibilities that they have towards their team(s).
- Draft all Management job descriptions to include health and safety responsibilities and health and safety objectives in any formal performance management reviews.
Claims & Complaint Management Support Services
Connor Fitzpatrick-Bryne has more than twenty years of progressive experience of investigating:
- Civil disputes, (DISP, FCA requirements, Data Protection legislation, Consumer Credit Act including Financial Ombudsman Service representations)
- Contractual Challenges, identifying root cause analysis leading to a structured resolution and compromise.
- Claims Management Services
- Conducting witness interviews and obtaining statements and obtaining CPR compliant witness statements
- Accident & Personal Injury Investigation
- Staff Screening Services including:
Employment References & History Validation
Qualifications and Professional Memberships
DVLA Driving Licence Validation
“I feel my greatest strength is my uncompromising positive attitude and enthusiastic inquisitive personality which is illustrated by my commercial awareness and the necessity to reflect business objectives through business development and successful management.”
Should you require any assistance regarding any of the above or wish to have an informal conversation with Connor then let me know and I will provide his contact details.