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Posted By Phil Roberts
An employee of the company I work for is making a claim against the company as the result of an accident. As H&S officer I investigated the accident and identified the the immediate and root causes. My estimation was 80% own fault and 20% management failure.
A witness who was present just befor the accident but did not actually see it has been approached by a claims lawyer for information as to his opinion of whose fault etc. The witness has asked for my advice on how to fill in the standard form. Any suggestions or advice would be much appreciated.
Thanks Phil Roberts
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Posted By Andrew Powell
Hi Phil,
You don’t say whether you are accepting liability or not, have you decided. Does your insurance company investigate, what is there opinion? I know that you cannot give too many details but can you say how serious the injury is? Time off, losses etc,
You say that the witness did not see what happened, just the lead up events. Therefore, he only has an opinion etc about events leading up to the accident and the claimant themselves. I personally would be very careful about guiding a witness's account for the claimant. It is difficult to remain 100% impartial, if you guide him when filling in the form you may taint any evidence that may help the company counter a claim.
Can I assume that you already have a statement from him for your own investigation. If he has been interviewed, his thoughts may be reasonably clear from that and this is what he should be conveying on the form. If you are correct in that the claimant is 80% at fault then through contributory negligence you can expect to reduce the end cost of the claim perhaps by 40% – 70%. Indeed if he has 80% blame, I would aggressively fight the claim. Remember the possibility of one successful claim ending in an increase in overall claim culture.
Sorry for the length of the reply.
Hope it helps
Regards
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Posted By Dyfed Rowlands
Phil,
With regard to your query, please give me a ring. I've dealt with over 400 claims and and have much experience. 01352 702 790
Regards
Dyfed Rowlands MIOSH
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Posted By Robert Woods
If you help this person fill the form in make sure they don't divulge this to the person thats making the claim, or they may suggest that there was just a chance that the witness had been unduly influenced.
I would love to know how you can judge that the blame lies 20-80 for the accident. Would you like someone impartial to carry out the accident investigation for free as I am more than willing.
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Posted By Judas Smith
Robert,
I do not believe there is any such thing as 'Someone impartial'. Maybe there are degrees of it, but accepting our inherent bias should be a pre-requisite prior to participation in any investigation. Afterall, we are products of our environment and consequently individuals to boot.
Regards Judas
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Posted By Allan St.John Holt
For what it's worth, I think it's most unwise to get into the game of apportioning blame, and would strongly advise investigators not to get into this at any price!
The forum for that discussion is in court, or during the claims process. Any comments made 'up front' can and will be held against the person who made them. Trust me, when a good barrister gets hold of you in court it can be a trying time for a witness asked to justify his opinion in percentage terms.
Allan
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Posted By Phil Roberts
Thank you all for your advice I will try to answer some of the points raised.
The accident has resulted in lost time and has been reported under RIDDOR.The injuries are not serious but have aggrivated a previous long term knee injury not due to work.
The estimate of blame is only my opinion expressed on this forum and has not been writen down in any reports.
The witness who approached me had given me a statement during my investigation and I advised him that I could not comment only to advise that he repeated that statement if he so wished.
I am expecting our insurance company to investigate if and when they recieve a claim from the employee. This attempt at a claim is the result of another successful claim which was successful due to managment failure to stop unsafe working practices in the interests of time and profit. So we are now on a roller coaster ride which will be hard to stop.
Any further advice will be much appreciated.
Thanks
Phil Roberts
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Posted By Stephen Asbury MBA FIOSH RSP
Phil
I am not sure if it is necessarily the role of a modern health and safety adviser to deal with claims in the way your messages (and indeed some of the responses) are phrased.
I'd stick to gathering a full and factual account of the facts (some photographs are sometimes helpful too), and handing them to the claims investigation department of your EL insurer.
If you are seem by 'the guys' as being too close to deciding on claims, it is possible that you will find future accident investigations more difficult and facts perhaps surpressed.
Having said that, RoSPA honoured me with its Safety Practitioner of the Year Award (Engineering) in 1995 on the recommendation of our insurer for supporting the overall risk reduction programme, which if done well may ultimately leads to reduced overall claims.
Good luck
Call if I can help.
Regards
Stephen Asbury
01283 509175
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Posted By David .J. Minnery
Robert ,
I am sorry , but I believe that when you have investigated an accident your job is to ensure measures are put in place to prevent recurrence , establishment of blame , if this is necessary , should be left to others i.e H.S.E . Inspectors , lawyers and courts .
As for helping a potential witness to fill out a form describing events leading up to an accident that you have investigated and apparently apportioned blame for , you quite clearly have a conflicting interest and should politely refuse , refer the person to someone who is independent or an organisation that may well be able to assist with the completion of the form .
David
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Posted By David .J. Minnery
Phil ,
My apologies for calling you Robert in my response , it should have read Mr Roberts .
David
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