Compensation Claims. Contents

Transcription

1 Compensation Claims Contents Employers' duties What kind of claims may be made? The tort of negligence Tort of breach of statutory duty Civil liability exclusions Conditions to be met for breach of statutory duty Defences against a claim Contributory negligence "Violenti" rule Vicarious liability - when the employee is negligent Strict liability - when the employer is not negligent Limitations on timescales for claims Damages Procedures when a claim is made Letter of claim Information that defendants must disclose The three "tracks" Winning the cases Role of insurance Training Lists of relevant legislation Further information (Page 1 of website guidance compensation claims)

2 Compensation claims In the event of an incident, the injured person is increasingly likely to make a claim for compensation, whether they are an employee or not. It is important that safety practitioners and managers understand the legal principles behind personal injury claims and know how best to defend and win them. Employers' duties Employers must comply with: The requirements of the Civil Procedures Rules (as amended by the Woolf reforms) The Employers' Liability (Compulsory Insurance) Act 1969 under which it is compulsory to have employers' liability insurance. These are in addition to the requirement to comply with the Health and Safety at Work, etc Act 1974 and all health and safety regulations, under which claims may also be made. In practice Legal principles governing claims Duty of care The fundamental starting point for most personal injury claims was established in the groundbreaking case of Donoghue v Stevenson (1932). This is the famous snail in the bottle case which established that a duty of care is owed to our 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 Occupier to unauthorised visitors, eg. 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 Wilson's and Clyde Coal Co v English (1938). In particular the case considered the personal nature of the duty. In this case, the employer was compelled by law to employ a colliery agent who was in charge of safety in the mine. Nonetheless, when an accident occurred, the employer was held liable. The case decided that the employer's duty of care to his employees was personal to the employer and could not be delegated to a manager or safety advisor - In other words, the common law duty of care established in Donoghue v Stevenson is primary and cannot be transferred to someone else, diluted, or delegated to employees. (Page 2 of website guidance compensation claims)

3 The case went on to say that employers must provide: A safe place of work and equipment Safe systems of work Reasonably competent employees. In addition if the employer knows an employee has a condition that makes that makes them more susceptible to injury, or makes the consequences or injury more severe than usual, extra precautions must be taken. Consequently, employers must take into account any significant special needs in an employee and take extra precautions. Employees with special needs include (depending on the circumstances): Young and inexperienced workers Pregnant employees Employees with learning difficulties Employees with a medical condition or disabled workers Actions under common law for work-related stress are now successful, so employers today must take into account mental wellbeing as well as physical wellbeing. What kind of claims may be made? In practice, the law of tort will be used to bring claims. "Tort" means a wrongdoing in civil law. Two particular torts are usually used when someone brings a claim for personal injury. These are the tort of negligence and the tort of breach of statutory duty. These two torts are often used together and this is commonly referred to as a "double-barrelled" claim. The tort of negligence A claim for compensation based upon the tort of negligence requires three conditions to be proved by the claimant as follows: 1. A duty of care must be owed by the defendant to the claimant. 2. The duty of care must have been breached. 3. The injury or loss suffered by the claimant must have been due to the breach of duty of care. There are some points to note about these three conditions in practice. Tort of breach of statutory duty An alternative route when making a claim for personal injury is for the claimant to show the defendant was in breach of a relevant statute and therefore liable to pay compensation. Civil liability exclusions Not all statutes can be used in a civil claim. Notably, the main sections of the Health and Safety at Work, etc Act 1974 cannot be used because of the civil exclusions clause at s.47 of the Act. This essentially means that breaches of these statutory provisions cannot be used to make a compensation claim. (Page 3 of website guidance compensation claims)

4 There used to be exclusions in the Management of Health and Safety at Work Regulations 1999, but these were removed in October The Management of Health and Safety at Work Regulations 1999 retain an exclusion for "persons not in employment" eg. members of the public who therefore still cannot cite the regulations in making a civil claim. Otherwise regulations on health and safety can be used without restriction. Conditions to be met for breach of statutory duty It is important to note that a breach of a statute is not sufficient on its own to prove the tort of breach of statutory duty in a civil claim. The following conditions must be fulfilled: The statute cited must apply to be claimant, for example an employee must use a statute which applies to employees, and a member of the public must use a statute which applies to the public. The statute cited must have been designed to prevent the type of injury incurred by the claimant. For example the Control of Substances Hazardous to Health Regulations 2002 (COSHH) are unlikely to be suitable in a case where the injury relates to manual handling. The statute must have been breached. If there has been a prosecution by the appropriate enforcing authority, this may aid the claimant's case. The injury must have been caused by the breach of statute. This is often referred to as the causation rule. For example, was the claimant's hearing loss due to a breach of the Control of Noise at Work Regulations 2005 by their employer, or was it due to the claimant attending pop concerts in their own time? Defences against a claim A number of possible defences may be applicable to a particular case. The claimant might not be able to show negligence or breach of statutory duty. For example, the employer did take reasonable care of his employee, or the injury sustained was not due to a breach by the employer. Contributory negligence One of the more important defences is that of contributory negligence. This is based on the Law Reform (Contributory Negligence) Act 1945 which states that if claimants are partly to blame for an accident through their own negligence, then the amount of compensation should be reduced. For example, if claimants failed to wear protective clothing issued to them, or if they did not follow procedures or protocols, then they may be open to a charge of contributory negligence and the damages award may be reduced or even withheld. Where it can be shown that the injury sustained was due to the sole fault of the claimant, the defendant will not be liable at all. (Page 4 of website guidance compensation claims)

5 "Violenti" rule The use of violenti non fit injuria is often misunderstood as a potential defence in compensation claims. The term means that the employee has consented to the risks at his or her workplace. The "violenti" rule once predominated but it is no longer a realistic defence in most cases today. Vicarious liability - when the employee is negligent In some situations an employer is liable for the negligence of its employees with respect to some other person being injured. This is referred to as vicarious liability. The key conditions for this 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. Strict liability - when the employer is not negligent In other situations the employer is liable even though it has not been negligent. This is often referred to as strict liability. The Employers' Liability (Defence Equipment) Act 1969 says that where an employee is injured using equipment that has a latent defect, the employer will be liable even though they may have taken all the necessary steps to ensure the equipment was obtained from a reputable supplier. It will be up to the employer, not the injured employee, to pursue the manufacturer through the courts in a counter claim. Limitations on timescales for claims Any action for personal injury or death must be commenced within three years from the date of the accident. This comes from the Limitation Act 1980 and from the Prescription and Limitations (Scotland) Act In some cases it may be difficult to ascertain a precise date when an injury was sustained, for example noise-induced deafness. In these cases the date when the claimant became aware of the injury may be used. This often relates to 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. Damages Damages can be considerable and there are two broad types. Pecuniary: these involve monetary losses such as loss of earnings, medical and travel expenses. Non-pecuniary: these involve compensation for pain and suffering and loss of amenity such as changes to lifestyle. (Page 5 of website guidance compensation claims)

6 Procedures when a claim is made New rules were put in place in 1999 following Lord Woolf's enquiry into the reasons why the legal system for dealing with claims was slow and unfair. The new rules made it clear that litigation should be a last resort and introduced a number of preaction 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 is as follows. Letter of claim received. Defendant must reply (at least acknowledge) 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 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. The court will take into account the fact that the defendant did not follow the protocol's rules. This puts an important onus on companies who may be named as defendants to react quickly to letters of claim. They must therefore have the necessary procedures in place in order to facilitate this prompt action. 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 entries First aid reports Supervisor's report Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) report to the enforcing authority. (Page 6 of website guidance compensation claims)

7 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 1999 the following should be disclosed: Pre-accident risk assessment required by regulation 3 Post-accident risk assessment required by regulation 3 Accident investigation report Health surveillance records required by regulation 6. In cases where the Control of Substances Hazardous to Health Regulations 2002 (COSHH) are relevant, a similar disclosure of documentation is required by the protocols. This includes: The risk assessment carried out to comply with the requirements of regulations 6 Documentation relating to the maintenance of personal protective equipment. For claims involving the Workplace (Health, Safety and Welfare) Regulations 1992, the documents required to be disclosed include: Repair and maintenance records required by regulation 5 Housekeeping records to comply with regulation 9. The message for companies is clear. If they are unable to produce the relevant documentation it may harm their case. If they have complied with the law, they must keep the appropriate records to be able to prove it. The three "tracks" In situations where the pre-action protocols do not result in agreement or settlement, the case will be allocated to one of three "tracks" as follows. 1. Small claims track jurisdiction with a financial limit of 5, A fast track for relatively straightforward cases up to 15, 000 with strictly limited timetables set up by the court. 3. A multi-track for cases over 15, 000 providing hands-on management by judicial teams. It is hoped that this system will ensure speedy settlements of cases and that positive direction and management of cases by the courts will help bring cases to a conclusion. Winning the cases Employers and other defendants need to consider carefully their approach to civil claims if they are to win more claims, and reduce the accompanying costs of accidents, including insurance premiums. The collection of evidence on the whole range of positive actions that may have taken place on health and safety is necessary, making an increase in record keeping and consequent bureaucracy inevitable. (Page 7 of website guidance compensation claims)

8 The following points may comprise a sensible strategy in order to win more claims and to deter others. Be proactive about health and safety. Generate a positive health and safety culture. Ensure health and safety is a high priority alongside other key business objectives. Keep records and make sure they are up to date and retrievable. Remember people with special needs such as young people or those with relevant medical conditions. Be scrupulous on recruitment and ensure that having a positive attitude to health and safety is a criterion for the job. Include health and safety as a personal performance appraisal issue. Use discipline where necessary for breaches of health and safety procedures and protocols. Train staff, especially managers and senior managers. Role of insurance Most employers are required to have insurance by virtue of the Employers' Liability (Compulsory Insurance) Act Exemptions include a number of public sector bodies such as government departments. A current certificate of insurance must be displayed. An insurance excess may be agreed with your insurance company and this may help to keep the premium manageable. This insurance is designed to provide at least a minimum level of cover in the event of accidents/incidents and consequent claims by employees. Cover must be at least 5 million. Copies of certificates of insurance must be kept for at least 40 years. These can be kept as paper copies or electronically. The Health and Safety Executive enforces the law on employers' liability insurance. Employers without insurance can be fined up to 2500 for each day they do not have suitable insurance. Public liability insurance is designed to give cover in the event of claims by non-employees Training Managers and other relevant staff must be given training in the Woolf protocols for dealing with claims. This training should include the need for claims to be dealt with quickly, (within no more than 21 days). (Page 8 of website guidance compensation claims)

9 Lists of relevant legislation Management of Health and Safety at Work Regulations 1999 Limitation Act 1980 Fatal Accident Act 1976 Health and Safety at Work, etc Act 1974 Law reform (Contributory Negligence) Act 1945 Employers' Liability (Compulsory Insurance) Act 1969 Employers' Liability (Defective Equipment) Act 1969 Civil Procedures Rules (as amended by the Woolf reforms) Further information The following are available from HSE39 Employers' Liability (Compulsory Insurance) Act 1969: a Guide for Employees and Their Representatives HSE40 (rev 1) Employers' Liability (Compulsory Insurance) Act 1969: a Guide for Employers (Page 9 of website guidance compensation claims)