IOSH Midland North District

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1 IOSH Midland North District 26 th February 2015 The Civil Case

2 Housekeeping Fire Safety please follow signs exit via stairwell and front door. Assembly point on car park. Toilets located on each landing. Phones silent/vibrate please during the presentation.

3 IOSH News No Time to Lose Campaign The campaign aims to: Raise awareness of a significant health issue facing workers in the UK and globally Suggest some solutions on a UK scale to tackle the problem Offer free practical, original materials to businesses to help them deliver effective prevention programmes

4 IOSH News Midland North District AGM May 2015 Would you like to join our Committee? Please speak to Jon (Chair) or Michelle (Secretary) IOSH Technical Helpline or IOSH s Commercial Department are updating 2 courses Introducing Managing Safety Refresher Course due to be launched in Spring, and Working Safely to be updated in the Autumn. Leading Safely to be launched early Summer

5 The Complete Safety and Health Practitioner Join us for the fifth annual Midland Branch members meeting that will support you on the way to becoming the complete safety and health practitioner. What is it: A free one-day professional development meeting for all IOSH Midland Branch Members When is it: Tuesday 17 March :00-16:00 Where is it: National Motorcycle Museum, Coventry Road, Bickenhill, Solihull, West Midlands, B92 0EJ

6 Health and Safety Week

7 Scenario An employee has suffered a life changing injury in a workplace accident. Whilst using a ladder, the ladder slipped and the employee suffered severe leg, back and head injuries. First Aid treatment was provided on the scene, and the injured person was transferred to hospital. What impact will this have on those concerned?

8 The Events January we discussed the Criminal Case Today The Civil Case with Bob Litchfield from Aon and Thomas Dixon Solicitor at Henmans Freeths LLP 19 th March The Media with Maurice Blisson 16 th April The Injured Person Jason Anker

9 This Evenings Presenters Bob Litchfield Bob has worked in the insurance industry for nearly 40 years and for the last 24 years for Aon. He is a client manager responsible for the delivery of Aon s services to a broad range of commercial UK and international clients.

10 This Evenings Presenters Thomas Dixon Thomas joined Henmans Freeth in April 2014 and has a significant amount of experience in defendant litigation. He trained as a solicitor at Plexus Law, which is the biggest defendant law firm in the UK and has worked on a number of disputes with a variety of insurance clients. Thomas regularly provides in-house training on topics relevant to claims handlers.

11 AON & FREETHS PERSONAL INJURY THE CIVIL CASE & IMPLICATIONS February 2015 Answers not options...

12 SCENARIO ACCIDENT AT WORK EMPLOYER S LIABILITY CLAIM FALL FROM HEIGHT HSE have investigated. A Civil Claim is commenced.

13 CONTENT THE FINANCIAL IMPLICATIONS THE CIVIL PROCESS WHAT TO EXPECT AT COURT

14 The Financial Implications to the Employer Injured employee = Loss of man power Sick employee = Employee SSP Absent employee= need for cover/ replacement= cost Insurance claim= potential increase in premium Potential impact on any low claims rebate Policy Excess Accident could halt Production= loss of revenue HSE investigation= could lead to change of process= cost HSE fines and intervention fees (identifying breach and putting it right) Snowball effect= compensation culture= further claims Investigations= loss of time- searching for documents- witness statements If not covered by insurance- Legal Costs Poor Safety record= poor reputation= damage to business/ PR= loss of revenue

15 The Financial Implications to the Insurer Claims handling costs Loss Adjuster s costs Defendant s Legal costs Claimant s Legal costs Compensation/ Damages PR

16 How a Civil Case Operates 3 main stages depending on value: 1. Pre Action Protocol for Low Value Personal Injury claims ( 1,000-25,000). 2. The Pre Action Protocol for Personal Injury Claims. 3. Litigation/ Part 7 Proceedings.

17 Pre Action Protocol for Low Value Personal Injury claims ( 1,000-25,000). Flowcharts Most Claims between 1,000-25,000 post 31/07/2013 must be commenced in line with the EL/PL low value protocol via the claims portal (the portal). The Protocol consist of 3 stages: Stage 1- claim notification. Stage 2- disclosure of medical evidence and negotiation. Stage 3- hearing to determine quantum. Fixed costs apply at each stage.

18 Stage 1- Claim Notification The Claimant s solicitor will send a Claim Notification Form (CNF) to the Defendant/ Insurer. This must be acknowledged within one working day. A response on liability must be made within 30 days (Employer Liability Claims only). If Liability is admitted Stage 2 is commenced. If Liability is disputed or fraud is alleged or contributory negligence is alleged it leaves the portal. If the claim leaves the Portal the CNF can be adopted as the Letter of claim and the Personal Injury Protocol adopted. Stage 1 Fixed costs of 300.

19 Stage 2- Disclosure of medical evidence and negotiation. The Claimant obtains medical evidence. The Claimant forwards the medical evidence to the Defendant. Within 15 days of serving the medical report the Claimant must submit a Stage 2 settlement Pack. The Defendant has 15 days to make an offer. This can be extended by a further 20 days by agreement. If agreement is reached then damages must be paid within 10 days along with fixed costs. If agreement is not reached then the Claimant sends the Defendant a Court Proceedings Pack. The Defendant has 5 days to comment on the Court Proceedings Pack. Stage 3 is commenced. Stage 2 Fixed costs: 600 if the value of the claim is < 10,000 1,300 if the value of the claim is > 10,000, but not more than 25,000

20 Stage 3- Hearing to determine quantum. The Claimant will file at Court a Part 8 Claim form with his/ her Court Proceedings Pack and supporting evidence on quantum. The Claimant will serve this on the Defendant. The Defendant files his/her acknowledgment of Service within 14 days. The Court will normally assess damages on the papers unless a hearing is requested. Stage 3 fixed Costs: Legal representatives costs: 250 Advocate s costs: 250 Counsel s advice (Infant cases only): 150

21 Claims which are not followed by the Low Value Protocol Accidents before 31 July Claims where the anticipated value is < 1,000 or > 25,000. Defendant is a protected Party. Claimant is bankrupt. The Defendant is insolvent and has no insurer. If there is more than one defendant. Accident was outside the UK. Fraud is alleged.

22 When do the Low Value Protocol s cease to apply? The claim is re-valued at over 25,000. The Defendant alleges contributory negligence. If the Defendant considers inadequate mandatory information has been provided. The Defendant does not admit liability/ respond within the prescribed period. The Defendant states the claim is worth < 1,000. The Claimant states that it is unsuitable for the Protocol. The Defendant fails to comply with the Protocol timescales/ pay fixed costs. Fraud is alleged.

23 If the Claim falls out of the Low Value Protocol for EL claims or alternatively is not suitable/initially valued in excess of 25,000 what process is followed? The Pre Action Protocol for Personal Injury Claims. Part 7 Proceedings/ Litigation.

24 The Pre Action Protocol for Personal Injury Claims Explained. Referred to as The PI Protocol. Protocol to be followed pre action i.e before proceedings. Must be followed by all Personal Injury Claims. The aims of the Protocol is better and earlier exchange of information and to give parties the chance to settle cases fairly and promptly. Time limits apply. If time limits are not adhered to then the Claimant may issue proceedings under the Part 7 route.

25 The PI Protocol The Claimant sends a letter of claim (LOC) to the Defendant in duplicate (one for the insurer). The Defendant acknowledges within 21 days. The Defendant then has 3 months to investigate and to either admit/ deny liability. If Liability is denied reasons must be given. The Claimant will send a schedule of damages to the Defendant with supporting evidence. The Parties agree to experts. A medical report is obtained and disclosed if liability is admitted. The Defendant then makes offers to settle. If liability is denied, the Claimant may issue proceedings, but should wait 21 days after sending the medical report and schedule of damages.

26 PART 7 PROCEEDINGS If negotiations breakdown/ liability is not admitted/ the protocols are no loner relevant/ limitation is approaching then the Claimant may issue Court proceedings by completing and filing at Court a claim form. The Claimant must attach to his/ her claim form a medical report. Once the claim has been issued (stamped by the Court) the Claimant may delay serving the claim form on the Defendant for up to 4 months. Once the claim form has been served, the Defendant has 14 days to acknowledge the claim (AOS). The Defendant has a further 14 days to file a Defence. Alternatively, a defence can be filed in the initial 14 days avoiding the need to file an acknowledgment of service. This is rarely done. Following which the Claimant may reply to the Defence. If no AOS/ defence is filed within time the Claimant may request judgment (CCJ). After the defence, directions questionnaires are filed. Case is allocated to a Track. Small < 1000 Fast ,000 Multi > 25,000 Standard directions/ Costs budgeting Disclosure Exchange of Medical evidence/ expert evidence Witness statements exchange Pre trial Checklist Trial

27 Scenario applied. EL Claim Fall from height Likely to be severe: unknown value, unknown Claimant (age/ sex etc) Unlikely suitable for Low Value PI Protocol. Claimant will instruct a solicitor. Solicitor will draft letter of claim (LOC) and follow PI Protocol. Once the LOC is received send to your insurer. Indemnity may be withdrawn if you do not. Important to liaise with your Broker here. You have a duty to co-operate. You then have 3 months to investigate liability. Due to severity of injuries multiple experts may be instructed.

28 Scenario applied. For example there could be a brain injury: Neurologist Neurosurgeon Psychiatrist Psychologist Experts will comment on Causation (whether injury was caused by the accident). They will also comment on future prognosis and timescales/ what is required for the Claimant to become symptom/ pain free (if possible). Once we have the medical evidence we can take a view on how much the claim is worth. If further questions need to be asked we can raise them to the expert. Alternatively, in multi track cases we can instruct our own expert if we feel this is required.

29 Scenario applied We will need to investigate the claim. We must ensure that we have all the relevant documentation e.g- Risk assessments Photographs Witness evidence Training records Accident Report Form Payslips Investigators/ Loss adjusters will normally be appointed by you Insurer to investigate and take a view on legal liability (who is to blame). They will normally obtain this information from you. Liaising with your Broker is key here. They will report back to your insurer following which liability will either be admitted or denied. If it is denied, or negotiations breakdown and proceedings are issued then your Insurer will instruct a solicitor to defend the claim. This is where Freeths are normally instructed.

30 Freeths Involvement To represent the interests of the Insurer and the Defendant. To make further enquiries/ carry out further investigations. Review all the evidence. Take a view on liability. Take a view on the value of the claim. Negotiate. Prepare witness evidence. Prepare the case for trial.

31 AON s involvement To assist the insured and the insurer/ their solicitors as necessary. To monitor progress and validate the insurer s reserve, particularly in the run up to renewal. To offer appropriate risk management advice relevant to the incident.

32 Trial- what to expect Cases that are allocated to the fast track will be allocated a 1 day hearing. Cases allocated to the multi track will typically have a longer estimate for trial depending on the complexities involved i.e the amount of witnesses, experts and issues to be addressed. Barristers are instructed to represent the Parties and make submissions. The Claimant s case will be presented first. The Claimant will call his/her witnesses. Their witness evidence will stand as their primary evidence and they will be cross examined on this. The Defendant will then present his/ her case and call his/her witnesses and they too will be cross examined.

33 Trial- what to expect If there is a dispute over expert evidence the expert(s) will also be cross examined. Both parties give final submissions. The Jude will then take a view on the issues and give his/her judgment. Depending on the Court you could be in a Judge s office/ court room or if the claim is to be heard at the High Court in London, a traditional Victorian style Court room. Usually unrobed. No Jury Answers/ evidence are/ is given to the Judge.

34 Thank you for Listening Any questions?

IOSH Midland North District. 15 th January 2015

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