guide minimising the cost of personal injury claims arising under employers and public liability

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1 guide minimising the cst f persnal injury claims arising under emplyers and public liability

2 cntents Intrductin... 2 Target audience fr the guide... 2 The authrs credentials... 2 Why publish the guide nw?... 2 General principles t be applied... 2 The rle f the slicitr... 2 Pre-incident phase... 2 Basic behaviurs... 3 Culture... 3 Danger areas fr defendants... 3 Risk assessments... 3 Safe systems f wrk... 3 Training... 4 Understanding yur liability... 4 Cntractual terms... 4 Setting up systems... 4 Jined up -insured/brker/insurer/adjuster/slicitr... 5 Feedback/learning... 5 Hw much effrt and resurce shuld be put int preventin -cst benefit analysis... 5 Privilege... 5 Pst incident phase... 6 Basic behaviurs... 6 Systems... 6 Cllating the facts... 6 Imprtance f legal privilege... 6 Third party capture... 7 Anticipating incidents that will result in claims... 7 Feedback/learning/reviewing risk assessments... 7 Handling claims... 8 Basic behaviurs... 8 Access t the facts and dcuments... 8 Understanding yur cntractual terms cntributin / indemnity... 8 Aligning yur handlers t yur business needs... 9 Type and use f medical experts... 9 Gd decisins n the law... 9 The mnkey/nuts syndrme... 9 Key Perfrmance Indicatrs Effective use f Part Cntrlling and aligning yur lawyers... 10

3 Large incidents HSE invlvement Settlement schemes Rehabilitatin schemes Cntributry negligence Examples % cntributry negligence % Cntributry negligence % Cntributry negligence % Cntributry negligence % Cntributry negligence Practical cnsideratins Emplyers liability case law illustrating when an emplyer can win Manual handling (The Manual Handling Operatins Regulatins 1992) Wrk equipment (Prvisin and Use f Wrk Equipment Regulatins 1998) PPE (Persnal Prtective Equipment Wrk Regulatins 1992) The Wrkplace (Wrkplace (Health Safety and Welfare) Regulatins 1992) Occupiers liability verview Occupiers Liability Act Visitrs and Occupiers Occupiers Liability Act Trespassers and Occupiers When has liability been fund? When has liability nt been fund? Obvius dangers Visitrs carrying ut their trade r prfessin Aviding Liability Under The 1957 Act Warnings Cntributry negligence Exclusin f liability Unfair Cntract Terms Act Independent Cntractrs and the Occupiers Liability Act Practical strategies Aviding r mitigating liability fr ppsing parties csts Part 36 Civil Prcedure Rules Strategies Medical expert evidence Pst-traumatic stress disrder and psychiatric injury Claiming/defending claims fr cntributin/indemnity Example Practical strategies Rehabilitatin Liability t the Cmpensatin Recvery Unit Offsetting repayable benefits Methds f reducing yur liability t CRU NHS charges Cnclusin... 33

4 Guide t minimising the cst f persnal injury claims arising under emplyers and public liability Intrductin Target audience fr the guide Organisatins wh pay fr the cst f injury claims via insurance premiums, insurance deductibles r thrugh their captive/self insured arrangement. The authrs credentials are a majr UK law firm with a substantial insurance law practice. We cmbine a refreshing apprach with the scale and depth f expertise t meet the challenges facing every business. We will prvide yu with high quality advice that is underpinned by a real understanding f the sectr. Partner Alan Jacbs and his team have wrked with businesses t supprt their risk management strategies fr ver 30 years. He has prepared this guide frm his experience ver many years acting fr insureds in defending persnal injury claims under the insureds captive r self insured schemes r by nminatin by an insured t their insurer. We view ur rle as directly helping crprates manage and cntain claims spend. Why publish the guide nw? The Jacksn refrms are likely t give a shrt term reductin in the third party cst element f yur verall claim spend. Hwever, ver time, changing market dynamics (eg, claimant law firm cnslidatin, ABS s, etc) will mean a significant rise in the number f claims being pursued, in the level f damages being awarded and therefre in the verall claim spend. This guide is intended t assist rganisatins in adpting strategies that will keep that spend t the lwest pssible level. General principles t be applied The key is active (as ppsed t passive) management (including inspectins/checks) at every stage f the incident/claims prcess. Underpinning this principle is a crdinated, aligned and jined up relatinship between insured, brker, insurer, investigatr/adjuster and slicitr. The rle f the slicitr An experienced slicitr has a massive amunt f accrued knwledge that culd be used t help yu in preventing incidents and helping yu reduce the cst f claims arising when incidents d ccur. Hw t best use that resurce warrants a guide in its wn right. Our shrt summary guide Managing Risk Cntrlling Cst is available free f charge frm 2

5 Guide t minimising the cst f persnal injury claims arising under emplyers and public liability Pre-incident phase Basic behaviurs Culture Anticipating and then managing risk t prevent incidents ccurring but nevertheless anticipating they will ccur. Having in place prcesses which effectively capture evidence f the facts and circumstances surrunding an incident. Learning frm every incident that ccurs and feeding back that learning int the business. Organisatins that are best at aviding incidents ccurring, but being able t dispse f claims quickly and at their lwest cst when they d, are thse wh have embedded the abve behaviurs. Danger areas fr defendants Risk assessments Main prblems N risk assessments carried ut. Assessments are prly prepared. Failure t reassess risk assessments peridically and t have a fllw n inspectin prcess t ensure risk assessments are being cmplied with. Causatin T successfully argue that failures arund risk assessments give a defendant liability fr an injury the claimant must shw that the lack f r inadequacy f a risk assessment is causatinally relevant t the injury ccurring. In ther wrds a missing r inadequate risk assessment des nt, n its wn, help a claimant in recvering damages (see Shirley Parker v Rbin Levy (T/A Essex Marinas) (2007) generally and Susan Lane v Disabilities Trust (2007) re manual handling). It has t be shwn that had there been a prper risk assessment it wuld have prevented the injury ccurring. Nn delegable duty The curts view the requirement fr risk assessments t be very imprtant, t the extent that in Uren v Crprate Leisure (UK) Limited and Ministry f Defence (Curt f Appeal) (Feb 2011) the duty fr an emplyer t undertake a risk assessment was held t be a nn delegable duty, thugh if an emplyer used a cntractr fr an activity and satisfied themselves that the cntractr had carried ut a thrugh risk assessment, in relatin t that activity it might well lead t the cnclusin that the risk assessment carried ut by the emplyer was suitable and sufficient even thugh it was nt as detailed as wuld therwise be required. In Uren the cntractr did nt carry ut a suitable r sufficient risk assessment and the MD shuld nt have relied n it t satisfy their nn delegable duty. S, even where thse cntractrs may be experts, an emplyer still has t make sure that the risk assessment is suitable and sufficient. (This will nt stp the emplyer arguing cntributin r indemnity frm the cntractr if it is nt). Safe systems f wrk Risk assessments shuld be the basis fr detailed safe systems f wrk fr any activities determined t have a significant risk expsure. 3

6 Guide t minimising the cst f persnal injury claims arising under emplyers and public liability Training Main prblems N training. Inadequate training (eg, Anthny Edward Gwer-Smith v Hampshire Cunty Cuncil (2008), a case with helpful guidance n inadequate training n the use f ladders, where the defendant was fund liable but managed t get a healthy 25 per cent reductin fr cntributry negligence despite that) N subsequent retraining refreshers. The lnger the perid between the training and an incident the less likely the training will be said t be relevant t the defence f a claim. Understanding yur liability N practical and in depth knwledge f the circumstances in which yu might have a legal liability is a prblem because: Risk assessments, training and accident investigatins systems will be inapprpriate and will nt capture the infrmatin, nr fcus n the detail, that is needed t minimise r defend such a claim. This is a management training issue and why we spend s much time with ur crprate clients training them n legal liability. Yu will als find AIRMIC training sessins & materials a useful resurce (www.airmic.cm). Cntractual terms T make sure that yur cntracts with suppliers, subcntractrs etc are all as strng as they can be t prtect yu, ideally yu will require: Indemnities in yur favur. The suppliers and subcntractrs having adequate insurance in place t cver them shuld yu wish t claim n the indemnities: diarise their renewal dates t ensure yu always have their current insurance details; retain their insurance details fr at least the perid f any indemnity perid impsed under yur main cntract. (But remember prfessinal indemnity insurance is generally written n a claims made basis s retentin is less imprtant). If yu d nt have the cmmercial clut t get indemnities yu at least need t understand clearly what liabilities yu have under the cntract s that when an incident ccurs fast accurate decisins can be made. Make sure yur cntracts have been reviewed by yur lawyers. Setting up systems Capturing the evidence, using the "glden hur" (the hur fllwing the incident). Witnesses Yu need systems in place fr identifying witnesses and capturing their evidence fllwing an incident (and fr retaining cntact details shuld they leave the business). Are peple that speak t witnesses prperly trained s that they can assess what facts might be relevant? The cntent f statements must be relevant t ptential civil liability. Statements must be signed. Statements shuld include thse witnesses wh can talk abut the relevant facts leading up t the incident. 4

7 Guide t minimising the cst f persnal injury claims arising under emplyers and public liability Statements must nt just describe the aftermath f the accident, particularly the injuries, withut any attempt at trying t understand hw and why the accident ccurred. Statements need t be taken asap after the accident and t have sufficient detail t allw readers t visualise what happened befre during and immediately after the accident, as if watching a film r reading a bk. They wuld ideally be augmented by phtgraphs and a sketch plan. Dcuments Are peple wh are cllating relevant dcuments, prperly trained t understand what might be available and what might be relevant. Are the dcuments stred s that they are crss reference-able t witness statements/incidents. D they include relevant dcuments created befre the accident such as risk assessments and training recrds, maintenance recrds etc. Jined up -insured/brker/insurer/adjuster/slicitr Yu need: A develped relatinship between all f the team members/partners invlved in the prcess fr preventin f incidents and handling f claims with. Alignment f the team members/partners t yur business needs. All team members/partners t be invlved tgether in: strategy planning sessins; sharing f best practice frm their industries; and end f case feedback. Feedback/learning Is there a system fr feeding back lessns learned fllwing an accident, s that prcedures can be reassessed, risk assessments checked t see whether they need revising, training assessed t see whether it needs updating etc. Hw much effrt and resurce shuld be put int preventin -cst benefit analysis An rganisatin needs t be very clear abut what they are trying t achieve in the pre-incident phase, and the cst f achieving it. Fr sme rganisatins the resurce they put int this phase might be said t be disprprtinate t the benefits (financially) they will achieve. There are, f curse ptentially, ther reasns why resurce might be put int this area eg reputatin, paternalism twards emplyees and supprting the culture f the business. Privilege Yu need a clear understanding f whether any dcuments yu create arising ut f an incident are privileged frm prductin t a claimant's lawyers subsequently. (Fr mre detail, see under Pst incident, systems.) 5

8 Guide t minimising the cst f persnal injury claims arising under emplyers and public liability Pst incident phase Basic behaviurs Where the facts surrunding an incident (why and hw it ccurred) are captured, and the incident/preincident facts are clear, cases are either: Successfully defended. Settled quickly. Cntributry negligence is successfully raised. Withut an understanding f these matters it is virtually impssible t speedily and accurately determine legal liability. Systems Cllating the facts Ptential use f external resurce -A lt f rganisatins, particularly large rganisatins, struggle with capturing facts and dcuments. Alan Jacbs and his team have advised several clients n this issue and assisted them in setting up prcesses invlving the cst effective use f external investigatrs/lss adjusters t cllate facts and dcuments within an rganisatin, t create a claims file fr the defence f the civil claim. SMEs may have their wn issues, including lack f specialist knwledge t knw what infrmatin shuld be cllated and inability t allcate resurce t deal with the whle prcess. Als, SMEs are mre likely t be lw excess plicy hlders. Fr all these reasns, the clsest pssible liaisn with insurance brkers, insurers, slicitrs, etc will be helpful. Imprtance f legal privilege Legal advice privilege can be summarised as applying t cnfidential cmmunicatins that pass between a lawyer and their client; and which have cme int existence fr the purpse f giving r receiving legal advice abut what shuld prudently and sensibly be dne in the relevant legal cntext. Litigatin privilege will apply t material which satisfies fur basic rules: It must be cnfidential. It must be a cmmunicatin between a lawyer and their client r between either the lawyer r the client and a third party. It must be made fr the dminant purpse f litigatin (the dminant purpse test ). The litigatin must be pending, reasnably cntemplated, r existing. Any dcuments created, ideally, shuld pass either frm r t a member f the in-huse legal team (r external lawyer), and the dminant purpse test must be cnsidered in any cmmunicatins with third parties (which might even include yur emplyees). 6

9 Guide t minimising the cst f persnal injury claims arising under emplyers and public liability Third party capture Sme rganisatins are reprting cnsiderable success in "capturing" persnal injury claims befre the claimant instructs their wn slicitr. The bject is t reduce claimants csts and therefre the verall claim cst. Generally, the damages being ffered t these claimants is twards the tp f the bracket fr the particular claim and smetimes in excess f that but the verall savings make that wrthwhile. There are a variety f ways in which capture can be dne: The crprate insured intervening with a claimant and seeking t settle the claim withut the need fr lawyers. Using ne f the available specialist third party rganisatins t intervene/act fr the claimant. Yur insurer's claims handlers intervening. The key is appraching the injured party at a very early stage. Organisatins d nt want t prmpt claims frm peple that therwise wuld nt claim but mst interventin prcesses invlve identifying the prfile f an injured persn that yu are mst likely t receive a claim frm. Sme rganisatins cnstantly review the accident bk t try and identify cases which they think are apprpriate fr capture befre a claim is made. Anecdtally it is understd that schemes wrk in bth Emplyers Liability and Public Liability situatins. Frm ur invlvement with these schemes we have seen that they can wrk, in terms f saving csts and creating greater satisfactin fr the injured party Anticipating incidents that will result in claims As a separate issue t third party capture it makes sense t cnsider incidents t try t identify thse likely t result in a claim. These are the incidents where ptentially it wuld be sensible t put the greatest resurce int capturing evidence (witness and dcuments) and preparing a prper claim file with which t deal with any anticipated claim. This is particularly useful where resurce is limited and a decisin shuld be made as t where t mst effectively use it. Feedback/learning/reviewing risk assessments The pst incident phase is anther stage where attempts shuld be made t cnsider what learning pints there are frm the investigatin that yu have made and t feed this back int the business with a view t changing prcesses and prcedures t stp similar incidents ccurring again, t reviewing risk assessments and reviewing training requirements. 7

10 Guide t minimising the cst f persnal injury claims arising under emplyers and public liability Handling claims Basic behaviurs Once a claim is established it invlves a phase up t, and including litigatin. Yur lawyers may be invlved pre-litigatin but certainly they will be invlved nce litigatin cmmences. Because f the number f different parties that might be invlved (insured, brker, insurer, investigatr/adjuster and slicitr) it is vitally imprtant that all are aligned t yur business needs, s that everyne is pulling in the same directin. It varies frm rganisatin t rganisatin what that directin is: Sme rganisatins wish t take a really strng stand n claims t try and stp a "claims culture" develping. Other rganisatins needs are fr a very early reslutin f claims which appear t be meritrius. There is a whle range f ther requirements, including crdinating the handling f the civil claim with the handling f an HSE prsecutin. All f this becmes even mre imprtant when yu have an incident which has resulted in multiple claims. We deal with a cnsiderable number f these incidents every year, particularly in the cnstructin and energy sectrs, but als in relatin t manufacturing and prduct recalls. The cnsistent message in all f thse cases is the need fr gd (and frequent) cmmunicatin and alignment between all the parties invlved in the handling f the claim. Access t the facts and dcuments Because in this phase the claimant can issue curt prceedings, it is mst imprtant fr the claim t be handled quickly and effectively. There are endless pprtunities fr claimants' lawyers t explit defence team inefficiencies and build up csts related t pre-actin applicatins fr disclsure f recrds, where yu have nt been able t adequately prduce dcuments in supprt f a denial f liability r allegatin f cntributry negligence. This can cst yu 1000 per applicatin. Speedy access t witness statements fllwing the incident, access t dcuments relevant t the incident etc, allw sensible and early decisins t be made n settling the claim r fighting it. Understanding yur cntractual terms cntributin / indemnity The ability t seek cntributin r indemnity frm the supplier, subcntractr etc by virtue f yur cntractual trading terms is frequently verlked r nt thught abut until yu have settled with the claimant. That prbably means that yu d nt have access t relevant cntractual dcuments and evidence that will ultimately help yu make a recvery. There is ften misunderstanding by insureds, investigatrs/adjusters and insurers, f the effect f cntract terms. Have this aspect reviewed by cmpetent lawyers. 8

11 Guide t minimising the cst f persnal injury claims arising under emplyers and public liability Aligning yur handlers t yur business needs Cnsistently where we have been nminated t an insurer by an insured, the verriding reasn fr this is t be directly cnnected t the insured, and nt just the insurer and their panel arrangements. This nminatin can prvide an nging active rle and cntribute in aligning the claim handling with the needs f the business. This apprach is als seen as beneficial by insurers. We have already utlined under "general principles", abve, that this crdinatin and alignment is vital. Type and use f medical experts In lwer value claims it is quite difficult t steer the identity f the medical expert used t prepare a reprt, it is far easier n multi-track (and therefre larger) claims. The use f a quality, frensic medical expert f the crrect type f expertise is fundamental t achieving a settlement at the right level. S ften nwadays n great thught is put int this part f the claims prcess and a lt f bth claimant and defendants' lawyers treat the selectin as if any expert will d. Where there is psychlgical injury it is imprtant t use a psychiatrist rather than a psychlgist. A psychiatrist is a medical dctr. A psychlgist is nt. There is all t frequent use f an accident and emergency cnsultant when an rthpaedic surgen wuld be mre apprpriate. There is ften inapprpriate use f the claimant's wn GP t prvide a reprt. Pain management cnsultants are frequently used when an rthpaedic surgen r a rheumatlgist wuld be far mre apprpriate. It is nt sufficient just t chse an expert f the right specialism. The quality f experts varies massively and yu shuld be using an expert wh will lk at the case impartially and, crucially, frensically. Gd decisins n the law Getting the law right is relatively easy when the facts f the case have been clearly established at an early stage. If yu get the law wrng at this stage it can lead t massive claims inflatin by either settling when yu shuldn't, settling at the wrng value r fighting a case when yu shuldn't. Use gd quality lawyers wh care abut each case. The mnkey/nuts syndrme Yu have t decide whether yu want t use a handler/ lawyer n the basis f paying them a very lw (usually fixed) fee fr bulk wrk which they will prcess in a cmmditised cnsistent way (this lends itself t handling things at a high level perspective rather than a frensic case by case perspective and will prbably result in reasnably speedy settlements in mst cases). T invest slightly mre in yur wn lawyer's fees t btain mre bespke legal advice n each case and a mre frensic and cnsidered review f the matter, which is likely t lead t better utcmes and a saving in verall claims cst. 9

12 Guide t minimising the cst f persnal injury claims arising under emplyers and public liability It is getting the balance right s that yu are paying the right amunt t yur advisers t be able t secure the best verall ttal claims cst n the case. Talk t several different firms and g fr ne yu feel yu can wrk with, are respnsive and align with yur apprach t claims. Key Perfrmance Indicatrs T get the kind f perfrmance yu want frm thse handling yur claims set them clear Key Perfrmance Indicatrs. Insist that the handler (whether it be insurer, Third Party Administratr (such as a claims handling rganisatin) r lawyer) prvides the Management Infrmatin that yu need and which specifically allws measurement f the agreed Key Perfrmance Indicatrs. Effective use f Part 36 Recent case law has clarified cnsiderably hw the Part 36 prcess wrks and it is the strngest weapn that a defendant has in limiting claimants' slicitrs' csts. Where a claim needs settling it shuld be cnsidered at every step f the way and used effectively and deliberately. Fr mre detail, see later in the Guide, under Aviding r Mitigating Liability fr Oppsing Parties Csts. A similar device is a Calderbank ffer which allws yu t make ffers, with ptential psitive csts implicatins, where the ffer des nt cmply with Part 36 eg, an ffer t cver damages and csts at an inclusive figure. Make sure yur lawyers understand the difference and yu agree a strategy with them as t when t use which. Cntrlling and aligning yur lawyers Psitively chse yur lawyers and nt just accept the insurers (randm) panel firm. 10

13 Guide t minimising the cst f persnal injury claims arising under emplyers and public liability Large incidents HSE invlvement Inevitably these incidents lead t multiple claims. This guide is cncerned with civil injury claims, hwever the HSE are likely t be invlved in any large incident resulting in injury, frm a regulatry/prsecutin perspective. It is crucial fr yur lawyers dealing with any HSE invlvement t be in very clse liaisn with lawyers dealing with any ptential r actual civil claims. Ideally they wuld be the same law firm. There is a high likelihd f claims/litigatin in large incidents and it is recmmended t engage lawyers early in the prcess, ideally pre litigatin (if nly t keep an verview rle at that stage). It is really imprtant t engage lawyers that yu can trust, have the right expertise and wh are yur chice. They will be needed t help prtect yur brand, yur reputatin and t have sight f yur bigger picture in relatin t any HSE prsecutin, which might f curse result in fines and criminal sanctins against managers. Great care needs t be taken ver prducing dcuments in relatin t claims investigatins which, if nt dealt with crrectly, may becme disclsable t HSE. See earlier under Pst Incident Phase in relatin t legal advice and t litigatin privilege. The key is having lawyers n call, wh knw yur business and will specifically instruct yur teams t investigate fr the purpse f and in the expectatin f legal prceedings rather than simply t recrd what happened. Settlement schemes Cnsider setting up a scheme, a standard way f dealing with parts f the claims prcess. These schemes are mainly created t deal with quantum assessment. Where there is the ptential fr multiple claims it is best t try t reslve liability early r, where smene is liable but there are multiple pssible defendants then the ptential defendants shuld try and agree as sn as pssible t settle claims early and srt ut the final allcatin f payments between themselves subsequently. Pssible schemes t deal with quantum are: Use independent cunsel t value and, in effect, act as arbitratr binding bth parties t the valuatin. Have an agreed "appeal" prcess in relatin t any Part 36 ffers yu might make. That prcess ften uses independently agreed cunsel t arbitrate. Attempt t agree the identity f medical experts and ther experts t reduce pssible areas fr argument. If there is deadlck ver quantum this can be reslved thrugh a lw cst mediatin scheme. The experts are CEDR (www.cedr.cm/slve). If it nt pssible t set up a scheme r a claim cmes ut f the scheme and is litigated, rather than ging thrugh the traditinal curt prcess, press yur lawyers t make sure the case ges thrugh mediatin. The advantages are: Very high settlement success rate Lw cst N legal precedents are set Settlement f the claim is achieved privately and cnfidentiality clauses are pssible 11

14 Guide t minimising the cst f persnal injury claims arising under emplyers and public liability Helps t keep relatinships between the parties Lack f publicity preserves brand Rehabilitatin schemes There is always the ptential t help reslve injuries early and t restrict damages accrdingly by use f rehab treatment. Frequently this is nt prvided quickly enugh, r at all, under the NHS. Setting up a scheme fr referring injured parties t rehab services at yur cst sn after an incident shuld be cnsidered. Often yur insurers will have facilities available that yu can utilise. This apprach is just as relevant t psychlgical injury as t physical injury. Smetimes referral thrugh such a scheme can take away the parties mtivatin t pursue a damages claim. It can help supprt yur brand. Yu shuld cnsider allwing access t anyne injured in the incident, withut prf f yur liability fr the injury, r whether yu wish t set up criteria t filter ut access. Sme prviders have a lw cst telephne triage service allwing initial assessment then ruting f peple dwn apprpriate treatment paths. This prcess can be the mst cst effective. There are gd and bad prviders. Watch ut fr thse that have n system t bjectively sense check the amunt f treatment recmmended, therwise yu are issuing a "blank cheque" t the prviders. Seek recmmendatins fr prviders frm yur lawyers etc. 12

15 Guide t minimising the cst f persnal injury claims arising under emplyers and public liability Cntributry negligence Yu cannt have a 100 per cent cntributry negligence. Fr cntributry negligence t arise there must be sme fault by the defendant that has caused sme f the claimant's damage (PITTS v Hunt (Curt f Appeal) (1990)). Disbedience f an emplyer's rder is nt, in itself, grunds fr cntributry negligence, the claimant still needs t have freseen that the disbedience expsed them t a risk f injury (Westwd v The Pst Office (Huse f Lrds) (1974)) an emplyee at wrk fell thrugh a defective trap dr in a rm. The dr t the rm said "N unauthrised entry". That ntice did nt indicate there was any danger and there was n reasn fr the claimant t believe there was a danger. His nly fault was disbedience, nt carelessness, and s he was nt guilty f cntributry negligence. In the wrkplace (particularly where the wrk is fraught with danger) the claimant has t g beynd mere inadvertence r reasnable risk taking befre there wuld be cntributry negligence (Sctt v Kelvin Cncrete) (1993). The claimant must be unreasnable if he takes a risk (Gibsn v British Insulated Callenders Cnstructin Limited (Huse f Lrds) (1973)). The claimant was nt wearing a safety harness because it prtected against sme risks (including the fall that actually happened) but created ther risks. In the circumstances the claimant was nt negligent in chsing t run ne risk rather than anther. If the risk t the claimant is inherent in fllwing the defendant's system f wrk it may nt be cntributry negligence (Mffat vatlas Hydraulic Laders) (1992). It was custm and practice t clean machinery whilst it was still in mtin, even after a guard had been remved. The claimant was injured whilst cleaning the mving machinery and it was held there was n cntributry negligence. His nly chice wuld have been t refuse t wrk in the manner adpted by his emplyer. A yung inexperienced wrker cannt be expected t be as safe as a mre experienced ne. (Yachuk v Oliver Blais C Limited) (1949). What percentage will yu get: Rarely less than 20 per cent and rarely mre than 80 per cent. Cntributry negligence has t be expressly pleaded in the defence. Beware that an applicatin t amend a defence t add a new allegatin f cntributry negligence late n in the day may be refused. Because cntributry negligence is a questin f reducing quantum rather than a defence t liability, a default judgement against the defendant deals nly with the issue f the defendant's liability and still allws cntributry negligence t be dealt with at the assessment f damages (Maes Finance v A L Phillips and C) (1997). The claimant's wn breach f a statutry duty. This is an alternative t the claimant being careless ie his actins cnstitute a breach f a psitive legal duty by statute: 13

16 Guide t minimising the cst f persnal injury claims arising under emplyers and public liability Health and Safety at Wrk Act 1974, sectin 7, take reasnable care fr his wn health and safety and cperate with the emplyer t enable the emplyer t cmply with their duties; Management f Health and Safety at Wrk Regulatins 1999, regulatin 14, use equipment etc in accrdance with training and instructins. The emplyee shall infrm his emplyer f dangerus wrk situatins. The Manual Handling Operatin Regulatins 1992, regulatin 10, t make use f any system f wrk prvided by the emplyer. Persnal Prtective Equipment at Wrk Regulatins 1992, regulatin 10, t use persnal prtective equipment prvided and in accrdance with training and instructins (includes self emplyed peple). T make sure the equipment is returned after use. Cntrl Of Substances Hazardus T Health Regulatins 2002, regulatin 8, t make full and prper use f any cntrl measures etc that are prvided. T reprt a defect discvered. Wrk at Height Regulatins 2005, regulatin 14, t reprt any activity r defect relating t wrk at height likely t endanger safety. T use any wrk equipment r safety device prvided in accrdance with training and instructins. Cnstructin (Health, Safety and Welfare) Regulatins 1996, regulatin 4, cmply with the requirements f the regulatin relating t perfrmance f r refraining frm an act by him. T cperate with a duty r requirement impsed by any ther persn under the regulatins. T reprt any defect that might endanger safety. Cnstructin (Design and Management) Regulatins 2007, regulatin 5, t reprt any defect which may endanger health and safety. Examples 0% cntributry negligence Nixn v Chanceptin Develpments Limited (2002) - the claimant was n scaffld and fell frm it in high winds. Guardrails were absent, in breach f the Cnstructin Regulatins. Althugh at first instance the curt fund the claim failed because the claimant shuld never have gne nt t the scaffld in high wind. The Curt f Appeal fund that the absence f the guardrails and the fact that the claimant was ding his jb as he was tld t meant that there was n cntributry negligence at all and he recvered 100 per cent. Tle v Bltn MBC (2002) - the claimant was wearing rubber glves instead f heavy duty glves which were prvided t him and sustained an injury t his finger frm a used hypdermic needle as he picked it up. At first instance the defendants were fund liable but there was a 75 per cent reductin fr cntributry negligence. On appeal it was fund that the emplyer shuld have expected emplyees taking shrtcuts in their wrk, which was unpleasant and dangerus wrk. Even if he had wrn the heavy glves prvided they wuld nt have stpped this injury s failure t wear the heavy glves was nt causative f the injury. The defendants were liable and there was n cntributry negligence in all the circumstances. Yung v The Pst Office (2002) - the claimant returned t wrk after being ff fr fur mnths due t stress. Light duties were agreed. Frmally his hurs were reduced but he was given s much wrk that he ended up wrking lnger than he had agreed t wrk and s eventually he had t give up the wrk due t stress again. The defendants were liable but n appeal the curt fund the claimant had n cntributry negligence. He was a hard wrking and cntentius emplyee, likely t carry ut whatever wrk he was asked t d and was psychiatrically vulnerable. In thse circumstances the emplyers culd nt turn arund and say that the claimant had vluntarily verwrked and was cntributry negligent. Wright v Rmfrd Blinds and Shutters Limited (2003) - the claimant was std n the rf f a van t lad materials nt it when he slipped and fell. The emplyers were held liable having tacitly adpted the claimant's methd f wrking and thereby cndned it. The actual slip was due t mmentary inattentin and the curt fund n cntributry negligence. 14

17 Guide t minimising the cst f persnal injury claims arising under emplyers and public liability Cper vcarillin (2003) - the claimant and a clleague were carrying a large piece f plywd acrss a building site. The claimant fell dwn an unfenced hle which he culd nt see because f what he was carrying. At first instance a 10 per cent deductin fr cntributry negligence was made fr failure t lk belw the bard. On appeal it was held the claimant was entitled t expect that there wuld be n unfenced hles and there was n cntributry negligence. Piccl v Larkstck Limited (2007) - a public liability case. The claimant slipped n flwer petals n the flr f a railway statin. They wuld have been readily visible if he had been particularly vigilant but the curt fund that this was a similar situatin t the classic case f Ward v Tesc in that shppers, intent n lking t see what is n ffer, cannt be expected t lk where they are putting their feet. There was n cntributry negligence. Barbara Hk v Eatns Slicitrs (2012) a firm f slicitrs was liable when an emplyee fell dwn a flight f stairs after lsing fting when stepping backwards t accmmdate an utward pening dr n a tiny landing. The firm had failed t carry ut a risk assessment regarding the suitability f the rute in questin in breach f its statutry duty under Management f Health and Safety at Wrk Regulatins 1999 and Wrkplace (Health, Safety and Welfare) Regulatins N cntributry negligence as the emplyee s behavir was mmentary inadvertence rather than cntributry negligence. Ali Ghaith v Indesit.c.uk Ltd (2012) - an emplyer was liable fr emplyee s back injury where there had been n suitable r sufficient assessment by the emplyer f the relevant risk f injury t the emplyee when carrying ut a stck take. N deductin fr cntributry negligence. 30% Cntributry negligence Ellis v Bristl City Cuncil (2007) - the claimant was a care wrker in a care hme wh slipped n a spillage n the flr. Althugh the emplyers were liable the claimant was well aware that the spillage was likely t be present and shuld have kept a special lkut. The lack f cncentratin was beynd mere inadvertence. There was 30 per cent cntributry negligence. Andersn v Lytier (2008) - the claimant was asked by a ski instructr, negligently, t ski dwn a slpe beynd the claimant's ability. The claimant felt he had t cmply even thugh he believed it was t difficult. His failure t vice his cncerns meant 33 per cent cntributry negligence. 50% Cntributry negligence Parker v PFC Flring Supplies Limited (2001) - the claimant was number tw in a small family business. An emplyee warned the claimant abut ging up nt a rf t investigate a prblem. Nevertheless the claimant went up despite wearing leather sle bts and knwing it was slippery. He slipped and fell thrugh a skylight. The defendants were liable fr breach f the wrkplace regulatins as it was freseeable that emplyees wuld get access t the rf and were nt prevented r frbidden frm ding s. The claimant was held equally t blame and there was a 50 per cent reductin fr cntributry negligence. Andersn v Newham Cllege (2002) - while walking acrss a classrm the claimant tripped ver the legs f the stand f a whitebard. The curt fund 50 per cent cntributry negligence. Butcher v Crnwall CC (2002) - the claimant, wrking utside, left a shed dr ajar. It blew against him injuring him. The retaining hk fr the dr t hld it back and pen was missing and the defendants were liable hwever the claimant did nt shut the dr prperly and was negligent. There was a reductin f 50 per cent fr cntributry negligence. Lwles v The Hme Office (2002) - the claimant walked up a ramp int a prtacabin but tripped n the tw inch step created between the tp f the ramp and the flr f the prtacabin. There was a "Mind the Step" sign. 50 per cent cntributry negligence was fund. 15

18 Guide t minimising the cst f persnal injury claims arising under emplyers and public liability Rbb v Salamis (2006) - On an il rig the claimant descended frm his bunk bed via a ladder. The ladder was nt prperly sltted int psitin and came away such that he fell. There was a reductin f 50 per cent fr cntributry negligence, the defendants being liable because the ladder culd becme detached and was nt suitable therefre fr use. Egan v Central Manchester and Manchester Children's University Hspital (2008) - the claimant was a nurse wh wheeled a patient n a mechanical hist. The hist cntacted with a plinth which was nt visible under a bath and she jerked her back. The claimant had nt lked carefully t see exactly where the feet f the hist where ging under the bath and there was 50 per cent cntributry negligence. Cllins-Williamsn v Silverlink Trains Limited (2009) - the claimant was drunk getting ff a train and placed himself int the gap between the platfrm and the train and was injured when the guard negligently failed t see him. There was 50 per cent cntributry negligence. Blaine Vincent Adam Quinn v Patrick Keenan (2013) -an emplyee sustained a back injury when lifting a heavy piece f wrk equipment n his wn. The emplyer was held t have failed t maintain and enfrce safe system f wrking but there was 50 per cent cntributry negligence because the emplyee had disregarded an bvius danger. 60% Cntributry negligence Sherlck v Chester City Cuncil (2004) - the claimant, an experienced jiner, cut his hand n a circular saw whilst feeding a lng fascia bard nt it. The accident was partly caused by there being n run ff table. The claimant was fully aware f the risks and hw t avid them. He had cnsciusly accepted the risk and was therefre 60 per cent cntributry negligent. Smith v Ntar (2006) - at a cnstructin site the claimant chse t deliver gds by walking n a plank walkway, which gave way. He was fund t have given n thught t suitable alternative means f access, f which several safer ptins existed. There was 60 per cent cntributry negligence. 75% Cntributry negligence Harvey v Plymuth City Cuncil (2009) - the claimant was drunk and running away frm a taxi driver when he fell ver an bscured drp. The landwners were liable but there was 75 per cent cntributry negligence. (In an appeal t the CA in 2010 the 2009 decisin was set aside and the appellant lcal authrity's appeal against the decisin that it was liable fr persnal injury sustained by the respndent n its land was allwed. When a lcal authrity licensed the public t use its land fr recreatinal purpses, it was cnsenting t nrmal recreatinal activities, carrying nrmal risks, and its duty as ccupier t an implied licensee culd nt be stretched t cver any frm f activity, hwever reckless). Practical cnsideratins Be realistic when deciding t allege cntributry negligence. Yu must pick yur cases carefully as fighting the issue will increase bth sides csts, ptentially cnsiderably. Knw when t use it as a negtiating tl but knw when t drp it. Hwever, with the right case yu will get it. Psitive indicatrs are an experienced emplyee and/r recent relevant training. Negatives are serius and persistent failings in maintenance f plant, equipment and premises and/r in enfrcing safe wrking practices. Try t get a feel frm the case law fr when a curt will give cntributry negligence. That desn't necessarily match with what yu might think is reasnable (see fr example abve, Wright v Rmfrd Blinds and Shutters Limited and Cper v Carillin). 16

19 Guide t minimising the cst f persnal injury claims arising under emplyers and public liability Emplyers liability case law illustrating when an emplyer can win Manual handling (The Manual Handling Operatins Regulatins 1992) Hughes v Grampian (2007) - the regulatins require that there must be a risk f injury arising ut f the manual handling peratin. Manual handling is defined as any transprting r supprting f a lad by hand r by bdily frce. In this case the claimant was cmplaining f repetitive mvement f the wrist, hand and fingers in the manipulatin f chicken carcasses by tucking in the legs and wings and tying it with elasticated string. Whilst that was being dne there was n transprting r supprting f the lad. Wellard v DSG Internatinal Plc (2009) - the claimant tre a bicep when he was attempting t remve and cllect a washing machine situated in a tight space underneath a wrktp. There was a suitable and sufficient risk assessment. The claimant was fully trained as t the methds f handling t adpt. He was experienced. He was entitled t refuse t cnclude the jb if there was any danger t him, and that was an established part f his training. The defendant had n liability. Ife v DSG Internatinal Plc (2009) - the claimant was attempting t deliver an American style fridge freezer. He stepped nt a rckery, slipped and injured his shulder. The risk assessment was suitable and sufficient. He had been prvided with a mbile phne and culd have telephned his emplyers fr guidance if he felt he needed it. He was aware at all times f the plicy that gds which were undeliverable shuld be returned t the dept. The circumstances f the accident were nt freseeable. Thrley v Vicarage Care Hme (2010) - the claimant was an experienced carer wh wunded her hip when lifting an elderly resident by using a methd f lifting she had knwn was prhibited. She chse that methd. She had had apprpriate training and apprpriate equipment was available. The defendant had n liability. Ann Wilsn v Baxterstrey Ltd (2012) - an emplyer was nt liable fr a repetitive strain injury caused t a chef s thumb, where the chef had adpted a wrk practice f hlding mixing bwls using a pincer grip. The activities were undertaken fr a very shrt time and fr limited perids during the day and did nt give rise t any freseeable risk f injury r any requirement fr a risk assessment. Wrk equipment (Prvisin and Use f Wrk Equipment Regulatins 1998) Cuzens v McGee (2009) - a piece f scrap metal that a claimant lrry driver had used as a makeshift tl did nt amunt t wrk equipment as the emplyers had n knwledge f it and had therefre nt given express r implied permissin fr it t be used. Smith v Nrthamptnshire Cunty Cuncil (2009) - the claimant cllected a disabled persn frm her huse. The claimant pushed the persn in her wheelchair dwn a ramp at the huse and the edge crumbled, the claimant stumbled and was injured. She alleged the ramp was wrk equipment, althugh it was installed at the disabled persn's hme. Because the emplyers had n cntrl ver the ramp, what was dne with it and t it, it was nt wrk equipment. The defendant had n liability. Whitehead v Trustees f the Chatswrth Settlement (2012) - the claimant, wh was emplyed as a gamekeeper by the defendant, accidentally sht himself in the leg while hunting vermin. He had been scaling a dry stne wall at the time which cllapsed beneath him. Bth barrels f the shtgun he was 17

20 Guide t minimising the cst f persnal injury claims arising under emplyers and public liability carrying went ff and hit him at pint blank range in the right calf causing him t suffer injuries. The emplyer was nt in breach f its duty t ensure that the claimant's expsure t health and safety risks, when negtiating bstacles carrying a shtgun, was prevented r adequately cntrlled, as the emplyer had distributed instructins n best practice and it had n reasn t suspect that the gamekeeper was nt fllwing best practice when wrking alne. Jasn Harris v Waitrse Ltd (2011) - the claimant had been unlading a cage frm a lift when the wheels f the cage struck a lip that had frmed between the slightly misaligned flr f the lift with the flr f the warehuse premises. The claimant jarred his back. He had deliberately ignred safety prcedures that were t be fllwed when the lift was ut f alignment and f which he was aware. It was impssible fr the defendant t eliminate all misalignment and althugh the degree f risk was freseeable, it was very lw. The claimant alleged that nce there was a risk, even if it was a very small risk, if it was a freseeable risk f smething that wuld affect the health r safety f an emplyee that was sufficient t give rise t a breach f regulatin 4. The curt fund the risk was lw and had been eliminated by the defendant's safety prcedures. David Ellitt v Wincantn Grup Ltd (2012) - althugh an emplyer had been in breach f the Prvisin and Use f Wrk Equipment Regulatins 1998 by failing t keep metal parts f a refrigerated trailer in prper repair, an emplyee wh fell and injured his hand n the metal parts while using nnstandard prcedures t tighten webbing belts within the trailer had been the authr f his wn misfrtune. PPE (Persnal Prtective Equipment Wrk Regulatins 1992) Fytche v Wincantn Lgistics (2004) - safety bts were prvided t the claimant driver t meet the danger f bjects drpping n the ft. Water leaked thrugh a hle in the bt and reached his little te causing frstbite. There was n liability as the claimant was nt expected t d wrk which required him t have waterprf bts. He was nt required t walk abut fr lng perids in snw and ice. Plus, althugh there was a defect with the bt, that defect was nt ne relevant t the safety functin f the bt that they were prvided fr. Susan Marie Splatt v Lancashire Cunty Cuncil (2010) - a lcal authrity was nt liable fr injuries suffered by ne f its cleaners wh had slipped n a flr she had recently mpped where the cause f her slip was her wn decisin t disregard what were satisfactry cleaning prcedures by mpping the flrs at a time when she culd still be distracted by members f staff in the building. The Wrkplace (Wrkplace (Health Safety and Welfare) Regulatins 1992) Furness v Midland Bank (2000) - the claimant slipped n water that had been spilled n stairs in the defendant's ffices. There were nly a few drplets f water, there was n histry f leakage r spillage n the stairs where the accident ccurred, the risk was small and it was nt reasnably practicable fr there t be cntinuus supervisin f the staircase. If there had been frequent spillages the psitin might have been different. The defendant had n liability. Palmer v Marks & Spencers (2001) - Is the flr f suitable cnstructin? The claimant tripped ver a weather strip placed acrss a dr threshld. The claimant had passed ver the threshld regularly fr tw years befre the accident and there had been apprximately 8,000 exits by peple ver the perid since it had been in place and with n ther prblems. The weather strip did make the flr uneven but this was nly slight and given it's use withut incident it did nt pse a risk. Adams v Omar (2008) - this case invlved the suitability f traffic rutes and the defendants were nt liable when a laded trlley had been blcking a pathway and the claimant was injured whilst trying t pass it, because alternative rutes were available and this was a transitry situatin. There was n 18

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