Rank: Forum user
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Hi all,
Just picking up yet another poorly written letter of claim this morning, with the usual incorrectly dated regulations, quoting irrelevant regs and also statute barred regs.
I understand these guys have jobs to do, and the "scatter gun approach" ie quoting every safety related regulation in existence in the hope one will count, I can just about cope with. But when they start to quote statute barred regs such as the Management of Health & Safety at Work regs 99, are they not in clear breech of those regs themselves? Specifically regulation 22 Exclusions to civil liability? And if so, are there or has there been any consequences that anyone is aware of?
Thanks, a moany moody Anderson8............
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Rank: Forum user
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Exclusion of civil liability
22.—(1) Breach of a duty imposed by these Regulations shall not confer a right of action in any civil proceedings.
(2) Paragraph (1) shall not apply to any duty imposed by these Regulations on an employer—
(a)to the extent that it relates to risk referred to in regulation 16(1) to an employee; or.
(b)which is contained in regulation 19.
I just learned something today, I was taught that the Management regs weren't statute barred in court. I guess its best to check for yourself rather than believe everything you hear eh! =)
Cheers Anderson8
RB
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Rank: Super forum user
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I think most of us have had similar in the past. I doubt that the 'claimant' is in breach of the law just for misquoting or incorrectly quoting a reg or whatever (i.e. I doubt that this is actionable in itself) and I suggest that the only consequence is that a claim that is 'barred' or otherwise not valid for whatever reason will, ultimately fail.
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Rank: Super forum user
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My understanding is the MHSWR have since been amended and Reg 22 does now confer the right to civil proceedings subject to the caveats below.
“Restriction of civil liability for breach of statutory duty
22.—(1) Breach of a duty imposed on an employer by these Regulations shall not confer a right of action in any civil proceedings insofar as that duty applies for the protection of a third party.
(2) Breach of a duty imposed on an employee by regulation 14 shall not confer a right of action in any civil proceedings insofar as that duty applies for the protection of a third party.
(3) In this regulation, “third party”, in relation to the undertaking, means any person who may be affected by that undertaking other than the employer whose undertaking it is and persons in his employment.”.
As for these so-called lawyers citing the wrong version or abrogated regulations, I doubt if most of them are really lawyers as we understand the term. Anyone with some basic knowledge of the tort of negligence and accidents could be trained up to deal with accident claims in a very short time IMO.
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Rank: Forum user
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The Management Regs were amended in 2003 to specifically allow a civil claim to be brought by an employee. They were amended again in 2006 to exclude the right of third parties to take action against emplyees.
See http://www.hse.gov.uk/press/2006/c06007.htm
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Rank: Super forum user
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Rank: Forum user
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Hear what you are saying about the MHSAW99 regs, will look in to this myself, I must admit I thought they were still barred, however in any case the question was does anyone know of any cases where Solicitors are brought to task for quoting statute barred regs? (not the claimant canopener).
In terms of misquoting regs, when I first got in to health & safety, I was fresh faced from my NEBOSH cert I noticed some misquoted regs in a letter of claim, I though "bingo, got em" so I promptly replied outlining their errors. Only to find the letter resent to me with corrections made a few days later, so what did I get out of that? Not a lot.........Even less when we went on to lose the claim and picked up the costs of writing the letter twice........doh!!
It's the little things which grind us down...........
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Rank: Forum user
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Rank: Forum user
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Anderson8 wrote:
It's the little things which grind us down...........
Remember the old poster...KEEP CALM and CARRY ON
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Rank: Super forum user
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'does anyone know of any cases where Solicitors are brought to task for quoting statute barred regs?'
No is the simple answer.
I suspect we have all been guilty of quoting the wrong regs, section, citation, date, etc from time to time -it goes with the territory. However, it's not an offence! It could be argued that one would expect better from the legal fraternity...but don't start me on that subject.
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Rank: Super forum user
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Dear All,
Wonder why anyone worries about what is put in the letter of claim.
As far as I am aware there is no legal sanction for quoting the "wrong Regs"....! The oft quoted "Trespassers will be prosecuted" springs to mind.... oh no they won't!
Why don't you simply pass the letter straight on to your insurer. Let them do what they are good at. They'll soon point out any errors and proceed to mount a robust defence - provided the insured had trained the injured person, undertaken a risk assessment, and has supplied all relevant information, documents etc. Otherwise they'll have to settle on best terms!
Phil
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Rank: Super forum user
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1999 is the latest date for the Management Regs (1999 No. 3242). Your letter of claim presumably fails to reference the relevant amending Regulations. Often easier just to say "as amended".
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Rank: Super forum user
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Phil - I tend to agree (as per my previous post) that there isn't any significant legal sanction for misquoting the regs, except that a claim doing so may fail on that as a technicality, however, I think you will find that SOME acts of trespass ARE a criminal offence under the Criminal Justice and Public Order Act 1994 and can be prosecuted.
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Rank: Forum user
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Going off tack slightly, does anyone know if anyone has ever been sacked for filing a fraudulent claim, ie made a claim for an accident (with subsequent injury) which didn't happen (faked it)?
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Rank: Forum user
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As Canopener and others rightly say, there aren't any legal comebacks for the solicitors that use the wrong regs etc. However, if the case ever gets as far as going to court and the errors haven't been spotted by the claimants team, this will provide a perfect opportunity to shred their case. Having an expert present in court to show that the claimant's side is talking complete tosh is good practice - and may well end up in the case being thrown out WITH COSTS AWARDED AGAINST THE CLAIMANT. That alone will make them think next time - a recent case I had a small involvment in the costs were around £70,000.
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Rank: Super forum user
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Canopener,
I stand corrected but to be fair I wasn't thinking of hunt "sabs", raves or aggravated trespass... more the attempt by landowners to frighten people from entry by erecting signs stating "Trespassers etc"
Phil
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Rank: Super forum user
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As far as I am concerned, claims farms incorrect legislation quotes are simply a process of winding us up to generate extra income with enhanced fees.
As far as they are concerned extra work generates considerably more income which is why they are trying to engage us with extra correspondence and they are far more experienced at playing this game than we are.
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