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Posted By Stuff4blokes
Hypothetical scenario: a hotel is owned by company A who appoints company B to manage the entire operation. Staff are employed by A on contracts designed by B.
In the event of a major injury, whose insurers would likely be the main defendant?
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Posted By Edward Shyer
Company A
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Posted By Richard Altoft
To be a defendant you have to be the subject of a prosecution -- why would the insurers be prosecuted rather than one or other of the companies??
R
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Posted By Juan Carlos Arias
I suppose that you mean in a civil claim. in which case IMO would be insurance A. in a criminal case could be either or both (A/B)
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Posted By Phil Grace
Tricky things hypothetical questions...!
Not sure the "...contract drawn up by B.. " is of any relevance. Your question implied that B was in charge of running the place - that would - I think - be the deciding factor. If B were in charge of day to day activities then I think they would be first in firing line.
So, as has been said by others, HSE would prosecute B (legal costs paid by EL insurer) and if there were a civil claim then the insurer of B would handle claim, settle compensation etc.
But - there could be some involvement of A if - for example - it was believed they had not selected a suitable firm to run their operations. But this is less likely outside scenarios where B is used because of their specialist knowledge and skills. I think most relevant case law is prosecution of Associated Octel where this firm employed another to clean out storage tanks. There was a fire and deaths - Octel held responsible because they had expert knowledge of risks and should have exercised more control over their sub-contractors.
Hope this helps
Phil
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Posted By stephen smith
Hi Stuff4blokes
Simple answer to this is whoever is in control of the premises & its operations would be the defendant in a criminal case
Civil case - whoever pays the injured persons wages
regard stephen
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Posted By Stuff4blokes
Thanks so far. I did mean defending a civil claim and was seeking opinions on who would be sued.
I think the Octel case is also very relevant here. If A has appointed a competent management company and has measures in place to check on competency are they doing enough?
Furthermore, if A learns of H&S weaknesses, how far does their duty extend?
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Posted By Phil Grace
If you are just consideirng a civil cliam then it is necessary to cosndier who is suing and for what.
Where it is an accident involving an employee it is generally easier to succeed against ones employer.
Obviously members of the public sue property owners after they have slipped in the shopping mall or function room, toilet etc of the hotel. But if hotel was being run by a management company they would be in control of premises and be first in line. But - claim can always be made against both parties but claimant then has to establish the negligence of each party. I would say it was more difficult to prove case against ultimate owner than against person actually running place on a day to day basis.
If its civil case Octel may not offer too much help.
Phil
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Posted By Raymond Rapp
In theory...it would be the the injured person's employer. Case law dictates that it is normally the person who pays the wages who is deemed the employer.It is they who have paid for the ELI to cover such a scenario. Although a claim could be made against more than one defendant, albeit unlikely in the circumstances.
I should think that if the accident was caused by the other party (company B) then company A or their insurers could claim against company B or their insurers to recoup their costs.
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Posted By Phil Rose
Stuff - sorry but I don't think that there can be a definitive answer your your question with the level of detail that you have provided. As Phil Grace has said above, it really does depend on who is suing, for what and the individual circumstances. Of course the person who is suing would have to identify who they wanted to sue and it would then be for them to accept or otherwise liability. I really can't see who the question can be answered without a better 'brief'.
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Posted By Phil Rose
As an aside, I am not at all convinced that the presence or otherwise of ELI is particularly relevant to identifying the person to sure or establishing liability.
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Posted By Stuff4blokes
This hypothetical scenario may have parallels in real-life, hence my reluctance to suggest any other detail.
My conclusion is that either party could be at fault, depending on the circumstances: a management system failure could be laid at the door of the management company (B), whilst a failure to provide adequate capital resources to address an identified risk could result in a prosecution or civil claim being made against the owners. I suppose too one could invent a scenario where both could be held liable.
Thank you to all contributors so far.
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Posted By Phil Rose
I hear what you say, although of course, depending on the circumstances leading to the injury, it is possible that NEITHER party may be 'at fault'
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