Posted By EE Wonder if any others out there have had this thought: Part of my annual bonus is linked to reducing accident rates - OK not an ideal scenario, but its a measurable that senior managers understand ..... If a person in our company (but not under my direct control) does a stupid thing - which he/she totally admits to (going against company rules & training provided) and sustains an injury. Can I sue him/her for loss of earnings? Compensation claims basics: 1 The individual has a duty of care to look after himself & others (HASWA) 2. There was a breach of that duty - he had injury 3. I suffered financial loss due this negligence Can I / company sue the injured person?

Posted By Steve B Great idea, unfortunately not many individual prosecutions get through. see the HSE prosecutions database on section 7 prosecutions, they are limited. the bottom line is (playing devils advocate) if an individual carries out an unsafe act, he has been allowed to do it i.e. not enough supervision maybe, not enough training maybe, not recruiting competent individuals maybe........ its a minefield but 9 times out of 10 the employer will be to blame for allowing it, yes there may be a bit of contributory negligence but the bottom line is if an individual hurts themselves at work it would be very difficult to prove 100% contributory negligence and he is most likely to sue you. not fair but true Steve B

Posted By EE Empoyee had written in accident report book that he/she is 100% negligent - admits full liability & unions have backed the company 100%

Posted By Adrian Watson Yes, in theory there is no reason why you cannot as long as you can prove: You are owed a duty of care; That standard of care expected of the duty holder was not met; and You suffered loss as a direct result of that breach! However, you will have a hard job winning. Good luck! Regards Adrian Watson

Posted By Adrian Watson Yes, in theory there is no reason why you cannot as long as you can prove: You are owed a duty of care; That standard of care expected of the duty holder was not met; and You suffered loss as a direct result of that breach! However, you will have a hard job winning. HSWA is not evidence that the person had a common law duty towards you not to have an accident and there is no direct between them having an accident and you suffering loss (lack of proximity and foreseeability). Good luck! Regards Adrian Watson

Posted By Adrian Watson Yes, in theory there is no reason why you cannot as long as you can prove: You are owed a duty of care; That standard of care expected of the duty holder was not met; and You suffered loss as a direct result of that breach! However, you will have a hard job winning. HSWA is not evidence that this person has a common law duty to you not to have an accident. Furthermore, there is no direct between the person and having an accident and you suffering loss (lack of proximity and foreseeability) so you will fail on the facts. Good luck! Regards Adrian Watson

Posted By Dave Wilson Adrian, Just thinking this myself, however it would fall at the first hurdle as this person does not owe him a duty of care to protect his earnings, therfore no breach occured.

Posted By Liam Mc Conalogue Guys, Come on- are we professionals about our work or are we after bonuses? Questions I would be asking Is he aware of the associated risk assessment(s), method statements...........etc. i.e. has it been communicated to this guy Did this guy do this deliberately- if so- why? Does he habitually flout the rules? If so then perhaps dismissal may be the better option to safeguard your other workers as well as the injured party? We need to seek to reduce accidents not to increase the crazy attitude with claims. EE I can appreciate your predicament, however, I certainly wouldn't opt to sue one of my men as it would not bode well for company relations. Liam

Posted By Mark Mace EE, i see your point However as stated by others life is not always fair. If i were you i would consider renegotiation with your superiors of your contract, i would never accept bonuses based on the lack of accidents, as whilst we may try to prevent them, your case invariably shows that there is always one person who will ignore all the training and all the rules just because it suits them. PS. only a short thought dot the i's cross the T's next time you audit this persons department, and be vigorous, very vigorous.

Posted By Ed L There is a common law precedent for this: Donoghue v Stevenson (1932) the outcome of which states: "You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure your neighbour" The presiding Judge - Lord Atkins went on to explain the 'Neighbour Principle': "Who is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought to have them in contemplation as being so affected when I am directing my mind to the acts or ommissions which are called in question" Hope it helps!!

Posted By Kieran J Duignan EE Whether or not you can sue him depends on which court you wish to use. Other comments have highlighted the difficulties of framing a claim under HSWA. The challenge to you is to consider issuing a claim under the Employment Rights Act 1996, possibly as a grievance. In accordance with the ACAS code of practice for Grievance, you are obliged to issue a grievance within the company in the first instance. This would require you to negotiate with those responsible for the terms of contracts of employment and the culture of the company - HR aka 'Personnel', if you have such a function or senior mangement if you don't - which is where you need to create dialogue in the first instance. You can find details of the appropriate first-step in-company grievance procedure on the ACAS website. It's reasonably straightforward. There is no financial cost to you or the company if you do issue the grievance, initially internally! What holds you back from going ahead on this basis, this week?

Posted By Paul Devlin EE have you thought that you could indeed be openining a can of worms. What if all the people in the company started court proceedings against you for H&S breaches since you in essence are charged with the companies H&S regime? You'll no doubt be wishing to sue all the other people who unfortunately have an accident and were found to be slightly at fault, where do you draw the line 50%, 40% you tell us????? Forget it and move on!!!

Posted By Mike Draper I'm sorry EE. But like some of the others I can't see how you can make a claim for negligence. This is a fairly straightforward contractual matter between you and your employer. You are paid by your employer and part of your remuneration is linked to performance. Unfortunately some of the performance criteria are beyond your ability to control or influence. This is not an unusual situation and I've been in a similar position in the past (before moving into H&S). We once had a bonus scheme that could pay out up to 10% of earnings based on total business performance and the performance of your particular division. In one year, half of the bonus was linked to our company maintaining our zero LTA status - a year in which my division was due to get a bonus close to the maximum possible. Someone in a different division suffered an over 3-day LTA - the result of a small lack of personal care and permanent site features on a third party site that they were visiting for a training day. We lost half our bonus for an accident that we could not prevent, that took place off-site and did not involve anyone from our division. As a consequence I now wouldn't accept a bonus scheme linked to safety performance at all, anywhere in the company, even on contractual arrangements. Money is just too divisive an issue.

Posted By Kieran J Duignan EE There appears to be a consensus on this site that the problem lies in the design of the bonus tied to safety measurement. Building on R J Hill's proposals about training, why not consider a radical shift that could safeguard well-designed bonus systems. This would mean updating your performance appraisal system (assuming you have one) in one of two ways. The simple change would be to include a measure of safe behaviour, on an individual and group basis, in the performance appraisal process. The more radical change is to replace performance appraisal and the existing safety bonus system with a quality coaching process embracing high performance, safety and health, with an emphasis on rewarding excellence. Most sane people, at all levels, respond more consistently to attractive carrots than to heavy sticks; less sane ones tend to resort to crooked sticks to complicate the mess and increase costs, financial and human.