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Accident Investigations and considering a claim
Rank: Super forum user
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Usually when I'm looking into the background to a claim it'll be some time after any initial investigation concludes. I'll look at the grounds on which the claim is brought, and if I disagree or want to explain I'll gather evidence to help our lawyers or insurers.
If a claim came in before you'd completed the initial investigation, would that lead you to ask any more specific questions of the injured party (the claimant) as part of your investigation? Obviously an investigation is an impartial affair aimed at identifying causes, but given that you now have a letter on behalf of the IP alleging you've done x, y and z which led to the injury, how would that affect your investigation planning, if at all?
Very interested in people's range of views.
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Rank: Forum user
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I would not let it change the investigation at all. The claims of the IP should not be allowed to get in the way of due process. Once the investigation is finished is the time to start putting defences to claims together.
If the IPs representative makes unreasonable time demands tell them they will have to wait until the investigation has been concluded.
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Rank: Super forum user
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It's a good question.
You could equally ask whether the practitioner is the right person to comment and defend a claim, being that investigations are supposed to be impartial and not to identify blame per se.
I agree in principle with the above post, in that the investigation must be fully concluded before any claim can be addressed. I would hope that any investigation would not be impaired by a pending claim. However, sub-consciously it could be?
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Rank: Super forum user
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The h&s guy should not in my option be involved in the claim process in anyway, that's the role of the company solicitor. The h&s guy should investigate any reported accident or dangerous occurrence to simply establish all the facts of the incident. Having done that he/she needs to review any applicable company procedures to see if any changes need to be introduced and get the company to get the changes signed off and implemented. Remember there is such a thing as privilege that needs to taken into account.
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Rank: Super forum user
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I often find solicitors and insurers appreciate the help in applying things like "reasonable practicability" to the situation in hand.
It doesn't mean your not impartial, just that you're helping to make sure outcomes (which ever way they go) are decided on the best possible understanding of reality.
I can think of lots of examples where paperwork doesn't tell the full story. I fully agree with you about the processes being separate though. I was just considering the interesting situation where you're planning to interview an IP and before you do, up pops a piece of paper from him telling you exactly what he says was wrong!
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Rank: Super forum user
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Just a few thoughts;
Evidence collected in the period immediately after an accident is by far the best evidence An investigation should be just that - a process to establish what happened, how etc and how it can be prevented from occurring in the future. I would suggest that a significant % of investigations into workplace accidents should be carried out on basis that there might be a claim at some point down the road. BUT That shouldn't colour the investigation. The insurer will want "facts" - they aren't asking/expecting the "investigator" - whoever that might be - to apportion blame or liability. That is the insurer's task. Remember at the time of the investigation no one knows what might be alleged when a claim is made - hence the emphasis on collecting facts. When the claim is made - perhasp 3,4,5 or more months down the road it is too late to "re-investigate" the events.
And fianlly: Under the new civil justice procedures (wef Oct 2013) insurers have 30 days in which to admit liability or prepare a defence. True that is for lower value/less complex claims but it isn't a long time. Certainly not long enough to carry out an invetigation of something that happened months previously
Phil
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Rank: Super forum user
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Sorry Phil the investigation is just that an investigation because if you do it under the thoughts of there being a claim then even the best investigation would be risky because it is slanted in some way. If the investigator is asked for help at a later stage he must only give facts not his views unless they are able to be proved beyond reasonable doubt to be true. I conducted many investigations on that basis and lawyers never questioned my impartiality.
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Rank: Forum user
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Personally I feel that the organisation is employing me to protect them and not defend them and on that basis only the facts about what happened will do that, what's done is done and if things were not right then we must hold our hands up and start to put things right. Feelings mustn't cloud our judgment. Just my thoughts.
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Rank: Super forum user
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I agree with the above, but do you think all / smaller company's allow anything that may be considered negative about their management to go out, regardless of the facts.
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Rank: Super forum user
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Bob, Still fail to see this aspect of "impartiality" comes into an investigation.
A safety officer (or similar) investigates an accident, what happened, who did what, what happened in what order ect etc. Aim is to identify how it can be prevented from happening a second time.
A claim is made - a set of allegations is framed by the claimant/their lawyer. What must be determined is whether what is "claimed" to have occurred actually did occur. For that it is necessary to know "...what happened, who did what, what happened in what order ect etc." and I use the same words exactly because that is the nub of the matter. An investigation into an incident where a person is claiming compensation must be based upon a factual overview of the events ... just as determined from an accident investigation.
Only once the facts have been determined can an opinion be drawn as to potential liability for compensation. Thus I regard the fact finding investigation process as being common, being the same whether one is working as a safety professional trying to prevent a reoccurrence or a claim investigator trying to establish the facts BEFORE determining liability. I think it is the "before" that is the deciding aspect. One doesn't decide upon liability before the facts are known.
Phil
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Rank: Super forum user
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It's been my experience in a number of roles that solicitors are rarely involved in the claims process, from the point of view. It is mainly the insurers or their agents that are involved the most. They will often discuss the details of the claim with the site H&S contact and take his / her views very much into acount before ma\king a decison / recommendation on liability
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Rank: Super forum user
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PL53: You are correct. For the majority of small/low value/limited complexity (Employers' Liability) claims the insurer's investigation will be carried out by their own "claims investigators" or by similar people employed by external organisations. The exceptions are usually:
EL: Complex claims, with serious injuries, or death and/or where prosecution is regarded as highly likely Public Liability: Complex claims similar to above or property damage claims where a Loss Adjuster is often used Products Liability: Generally speaking such claims are diverted immediately to a Loss Adjuster.
Phil
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