Posted By Mike Han
I would be grateful for views in regard to a recent accident and the claim for compensation claim that followed.
The injured person was assigned the task of fitting drainage in an excavation and was told by site foremen to go to get a ladder for access to and from the excavation from the store. the store was locked so the injured person went ahead with the work and on entering or leaving the excavation slipped and fell suffering cuts stratches and bruising. He took time off work for medical attention but returned to work later that day and has not lost any earnings as a result. The person in question has worked in the industry for 20 years and has been given health and safety training. He has since logged a claim and our insurance company want to settle out of court to the tune of £2500.
My opinion is that this person is being rewarded by our insurance for not following safe systems of work and disobeying instructions from his foreman.
Any views?

Posted By Martin Allan
I disagree with my mate Arran somewhat. First the employee lost nothing in wages, and he is perhaps not very inconvenienced by injury as he appears to have returned to normal work straight away after seeing "Matron"! What exactly is he claiming for? What were the injuries and pain claimed?
Unless he has a very disabling injury I cannot see his claim realistically being worth the amount being suggested as settlement and certainly not what Arran suggests.
I detest these claims which all too often are brought on by the ambulance chasing claims companies we often see advertising on the TV. They (the claimant companies)know that Insurance companies are all too often willing to settle as they (the Insurers) will not lose money in the long term as result of any payout. (Remember this years payments are always next years premiums!) Similarly Insurers often don't want the hassle of any correspondence, so a claim is pitched by claimants at the low end like this one, knowing insurers love a quick settlement. I am sure this is why insurers often appear to settle rather than take a reasonable stance and fight the claim, they are happy in the knowledge that they are using the clients current and future premiums!

It is a difficult area as firms have to abide by the decisions of their Insurers.

I would suggest that, providing you have records of good training, you seek to counsel the employee again as to the error of his ways, whilst seeking to confirm that he knew at the time that he should not have taken the action he did. With this confirmed and good training records the firm can perhaps approach the Insurers again and suggest they take a stronger and more realistic stance on the matter of contributory negligence.
However, be very sure of the training records and the validity of actual training given. Also be prepared to justify the correctness and detail of Instructions given at the time. These are areas where lots of defences fail. Records of Instructions, training, and supervision are often found to be non existent. This is what allows the Legal firms to make their claims, not the changes made by Lord Wolfe in claims procedure.

For the future we all should make sure that we keep good records of any training for employees, including currency of training with assessments of training and employee understanding of the training.(No use giving training then not assessing/confirming their understanding or you will not have a leg to stand on!)
Far too often the basic requirements of HSW act S2 cannot be proven to have been fulfilled, in cases of claims like this and expensive settlements are then a result.

Posted By Arran Linton - Smith
Unfortunately there is not a level playing field when it comes to smaller personal injury claims.

Often the first moment that an employer knows anything about a personal injury claim is when they receive the plaintiff’s solicitor’s letter starting the civil process. Although resorting to law should be the last course of action, I have never heard of a personal injury solicitor asking their client if they have already sought compensation from the defendant and if not advising them that this should ethically be their first course of action.

The risks for smaller cases are not equal. For example if personal injury compensation is likely to be greater than £1,000 the case would not be heard in a Small Claims Court in which case if the defendant loses, he is responsible for all costs. If an employer injures an employee at work, then he is normally liable for all costs. Unfortunately this process arguably leads to some speculative claims and I have come across injuries that appear to be greatly exaggerated, claims for loss of earnings when the claimant has been working etc. Providing evidence to show that plaintiff claim is potentially dishonest only sends the plaintiff’s costs up.

The claims industry could so easily be cleaned up, if the threshold for Personal Injury cases to be heard in small claims courts were raised to say £5,000, if there was a process of fixed legal fees such as with Legal Aid fees or if the Law Society produced a specific Code of Practice for personal injury solicitors and the defendants where able to raise formal complaints via the Office for the Supervision of Solicitors if this code was breached.

Posted By Tony
You say that the insurers are rewarding this character for his behaviour, but the reality is that they need to be able to rely upon the legal doctrine of "Volenti Non Fit Injuria." This means that he knew the quality of his act and that he was likely to sustain injury in doing what he did.

Unfortunately the courts do not recognise this defence in an employment situation as they simply don't know whether some unscrupulous employer has said "Get on with it, or your sacked." Rather than argue about the unprovable the courts simply refuse to recognise the defence where employees are concerned.

However under the Contributory Negligence Act 1947, there is the possibility of reducing any potential pay-out.

If our friend is making a NWNF claim I am suprised that anyone has taken him on given the facts you suggest. He has little or no quantifiable damage, no special damages(loss of wages), and perhaps a minimal claim for some barely significant pain and discomfort worth at best a couple of hundred quid.

On NWNF if your claim is not worth £1000 then each side pays there own legal costs which is why nobody settles for less.

If your insurers have offered £2,500 there must be a reason that you are unaware of, or else the claimant and his solicitor are going to be very pleased