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Jase84  
#1 Posted : 08 November 2017 10:26:39(UTC)
Rank: New forum user
Jase84

Hello Everyone,

Looking to get your thoughts on a situation we find ourselves in at the moment. 

We have an employee who is pursuing three claims against the company for three separate injury incidents.  The guys has apparently received three injuries during work, which we have no witnesses to, but nor can we prove that they didn't occur.  He has been absent on long term sick and his solicitor is trying to claim damages. 

We have documented risk assessments for the tasks he was carrying out, however we are being challenged on the fact that he has not signed them off to acknowledge an understanding of the risks and control measures.  Is this really a valid defence?  Surely the risk assessment is a mangement tool which forms part of a safe system of work.  With one thousand employees in the UK and several hundred documents, is it realistic that everyone should be expected to sign a receipt of these?

I am sceptical about the legitimacy of this individuals injury, and was informed he returned to work following his sick pay being stopped, only to then have an incident two days later which resulted in a fractured finger.

We have a lot of well educated people in the business, and for some reason this individual is playing us like a proverbial fiddle.

We have reports of him being seen getting into a works van whilst off work injured, however nothing concrete.  Apparently the broken finger may also have been as a result of fighting, but again this cannot be proven.  All we know is that there were no witnesses to this apparent injury at work.

The injury occurred when he was descending from a pipe stack on a cargo vessel.  He climbed down the high side, stumbling and apprently fracturing his finger.  The supervisor advised that he was the only one to take this route, and everyone else had came down the lower side of the stack to egress safely. 

Isn't being reckless and not adhering to section 7 of the HSW Act. a factor here?  He is claiming he carried out a 'dynamic risk assessment' and had done this many times before.

For me, he is clearly playing the game, and looks set to claim a significant figure in damages.

Would appreciate any advice or thoughts regarding this.

Thanks.

Edited by user 08 November 2017 10:27:40(UTC)  | Reason: Spelling

RayRapp  
#2 Posted : 08 November 2017 11:28:39(UTC)
Rank: Super forum user
RayRapp

Hi Jason Sounds like a very unlucky person to have three accidents! Seriously, this does smack of vexatious claims but proving it may be quite challenging. There is absolutely no requirement for employees to read and sign RAs. They are, as you have stated, a management tool which should be transposed into various working documents and procedures. The IP will have to prove negligence on your part to be successful in a claim. It appears from your post he was not particularly careful in following the prescribed method of working, which will be difficult to defend I suspect. Without any witnesses to his claims I suspect this is going nowhere - he and his solicitor are trying it on in my opinion. That said, your insurance company will decide whether to defend the claim or pay up, hopefully the former.
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Jase84 on 08/11/2017(UTC)
pl53  
#3 Posted : 08 November 2017 12:43:17(UTC)
Rank: Super forum user
pl53

In my opinion, from the, albeit limited, information you have supplied, your company will be found to be liable in this situation. 

You have a duty to conduct suitable and sufficient risk assessments and to bring the results of those assessments to the attention of your employees. If you wish to demonstrate that you have in fact done this you will need documentary evidence which you do not have.

You also have a duty to provide information, imstruction and training to your employees on the risks of the work they are doing. Again documentary evidence is needed.

From the point of view of the specific incident of the broken finger, you have no adequate defence if you are relying on the fact that he was doing something out of the ordinary.  Was he being supervised? If so why did the supervisor not take action to prevent him doing what he did?. If he wasn't being supervised, why not?

There is case law I believe covering your duty to foresee that someone will do something stupid (Tangerine Foods I think).

RayRapp  
#4 Posted : 08 November 2017 13:07:30(UTC)
Rank: Super forum user
RayRapp

'You have a duty to conduct suitable and sufficient risk assessments and to bring the results of those assessments to the attention of your employees. If you wish to demonstrate that you have in fact done this you will need documentary evidence which you do not have.' I would be interested to learn what authoritative document states the above? It's certainly not in the MHSWR Reg 3. I believe the Tangerine case was a criminal case re HSWA s2/3 so does not apply.
A Kurdziel  
#5 Posted : 08 November 2017 13:42:22(UTC)
Rank: Super forum user
A Kurdziel

I am not at all convinced that the employee has a good claim and I am not sure how a broken finger can lead to “substantial damages “being paid.  You can no longer sue for breach of statutory duty as far as Health and Safety is concerned; only for negligence. You have to demonstrate that the injury was due to an omission or action of the defendant. Simply not having a risk assessment will not in itself cause an accident (nor will it of itself prevent an accident). Of coursed the insurers will just advise you to pay up and then they will put up the premiums so we will never know.

chris42  
#6 Posted : 08 November 2017 14:43:22(UTC)
Rank: Super forum user
chris42

Unclear from the OP if the employee just has not signed the RA or if he has not been warned of the risks (as per reg 10 of MHSWR) in any way (ie training or signing off the RA for the work or SWP etc). If you have warned about the risks and he has chosen to do something different that is gross misconduct, isn’t it? You have the risk assessment you say, but can you prove communication and understanding of the risks in some way shape or form. The way the OP phrased the post it does not sound as if they have been warned at all, and so likely to win. Whether they should or not is another matter

If he has not been warned about the significant issues from the task he was doing, would that in itself not be considered negligent? I agree breach of statutory duty is not enough, but failing to warn of the dangers / risks would be wouldn’t it.

Has this person had training to do Dynamic RA’s ? if so then it was he that messed up.

achrn  
#7 Posted : 08 November 2017 15:33:15(UTC)
Rank: Super forum user
achrn

Originally Posted by: chris42 Go to Quoted Post

If he has not been warned about the significant issues from the task he was doing, would that in itself not be considered negligent? I agree breach of statutory duty is not enough, but failing to warn of the dangers / risks would be wouldn’t it.

Does that apply if what he decided to do was obviously risky?  I observe that the OP reports that everyone else chose a different egress route that (by implication) did not result in any injuries.  I haven't told all our employees that they should walk down the stairs rather than slide down the banisters - would we be liable if someone broke a finger doing so and said we hadn't warned them of the dangers of sliding down banisters? (As a matter of fact, that risk is not in our office RA.)

[For avoidance of red herrings - our employees are all mentally competent adults - I'm aware of the recent case of a child sliding on banisters and falling to their death.]

I'm quite surprised that someone can break a finger to a degree requiring a large payout, but none of his workmates noticed at the time.

chris42  
#8 Posted : 08 November 2017 16:53:52(UTC)
Rank: Super forum user
chris42

Originally Posted by: achrn Go to Quoted Post
Originally Posted by: chris42 Go to Quoted Post

If he has not been warned about the significant issues from the task he was doing, would that in itself not be considered negligent? I agree breach of statutory duty is not enough, but failing to warn of the dangers / risks would be wouldn’t it.

Does that apply if what he decided to do was obviously risky?  I observe that the OP reports that everyone else chose a different egress route that (by implication) did not result in any injuries.  I haven't told all our employees that they should walk down the stairs rather than slide down the banisters - would we be liable if someone broke a finger doing so and said we hadn't warned them of the dangers of sliding down banisters? (As a matter of fact, that risk is not in our office RA.)

[For avoidance of red herrings - our employees are all mentally competent adults - I'm aware of the recent case of a child sliding on banisters and falling to their death.]

I'm quite surprised that someone can break a finger to a degree requiring a large payout, but none of his workmates noticed at the time.

 

Fair point, but the OP doesn’t appear to have provided any information of how access / egress should be achieved or the dangers surrounding it, so can’t complain if they then determine their own route / method. It sounds as if this was a work at height issue, though not sure how exactly a finger could get broken. But work at height should surely be planned and so access and egress discussed. Therefore it either was not discussed and he determined what he thought the best route or he was told and he is on a frolic of his own, but that does not sound the case here. The OP can’t tell were the injury occurred (even outside of work), and you have to work on the assumption they didn’t deliberately break their finger. Without any evidence to the contrary it is hard to defend.

 

As I noted earlier reg 10 does require you communicate the significant risks (not necessarily by getting them to sign a RA), and how they should be controlled. Walking up and down general stairs is an everyday activity, so not significant so you’re ok not having a RA for it (neither do I).

10.—(1) Every employer shall provide his employees with comprehensible and relevant information on—

(a)the risks to their health and safety identified by the assessment;

(b)the preventive and protective measures;

Jane Blunt  
#9 Posted : 08 November 2017 22:42:43(UTC)
Rank: Super forum user
Jane Blunt

You say ' injuries ....which we have no witnesses to, but nor can we prove that they didn't occur'

Surely there is a first aid report? I find it hard to believe that someone would break a finger and not be hopping around saying ouch (other exclamations are available). and wanting to see a first aider.

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A Kurdziel on 09/11/2017(UTC)
Invictus  
#10 Posted : 09 November 2017 09:00:19(UTC)
Rank: Super forum user
Invictus

inxW
Originally Posted by: A Kurdziel Go to Quoted Post

I am not at all convinced that the employee has a good claim and I am not sure how a broken finger can lead to “substantial damages “being paid.  You can no longer sue for breach of statutory duty as far as Health and Safety is concerned; only for negligence. You have to demonstrate that the injury was due to an omission or action of the defendant. Simply not having a risk assessment will not in itself cause an accident (nor will it of itself prevent an accident). Of coursed the insurers will just advise you to pay up and then they will put up the premiums so we will never know.

I thinking along the same lines, and it doesn't actually say how you need to inform employees. The signing of risk assessment to say you have viewed it is a curve ball.

Reading what the poster has put it doesn't seem that he would of taken any notice anyway, all other employees went the easy way but he took the difficult route.

I also agree the insurance company will agree to pay and up the premiums.

pl53  
#11 Posted : 09 November 2017 15:08:28(UTC)
Rank: Super forum user
pl53

" I would be interested to learn what authoritative document states the above? It's certainly not in the MHSWR Reg 3."

Doesn't have to be in an "authoritive document" or written into a statutory instrument because it is common sense. If as the OP states "We have documented risk assessments for the tasks he was carrying out, however we are being challenged on the fact that he has not signed them off to acknowledge an understanding of the risks and control measures." there needs to be an audit trail to prove that. They can have all the risk assessments in the world, but if they cannot prove that their employees have been made aware of their contents they WILL be found negligent. One way of proving that is to provide documentary evidence

A Kurdziel  
#12 Posted : 09 November 2017 15:36:34(UTC)
Rank: Super forum user
A Kurdziel

There has to be a direct causal link between the act or omission and the injury caused.  It is not a matter of totting up points for and against: so much for a risk assessment, so much for training, so many demerits for not getting people to sign a piece of paper etc.

There is also the issue of contributory negligence by the claimant: would a reasonable person come down the way he did especially compared to his colleagues who did not suffer any injury.

thunderchild  
#13 Posted : 09 November 2017 15:41:13(UTC)
Rank: Forum user
thunderchild

In my past experience with insurers they will payout if you don't have a signed RA, how do you evidence its been read and understood otherwise? The IP will just say "I never saw that" even if you know full well he did as his solicitor will just turn round ans ask you to prove it which you can't. I'm not saying its right but its the way it is.

I've also found that its cheaper to pay out thand it is to fight anyway so the business decission is to payout and learn a lesson from the accident to prevent it happening again.

If he took the wrong route I presonally would want to dicipline him for that but again difficult if you cant evidence he was told the correct way to go.

I've also had experience of serial claimers, 4 against us and 1 against the client......all paid out. Cher-ching!

Brian Campbell  
#14 Posted : 09 November 2017 16:27:37(UTC)
Rank: Forum user
Brian Campbell

Your own solicitor will ask their solicitor to provide evidence that the injuries where caused at work.  They will ask for any medical records from hospitals or Doctors and if the time frame fits then I would suggest youll have to pay out.  On the other hand a Judge may look upon this individual as someone chancing their arm but if the evidence stacks up against you then they will cash in!!  If your employee did not report injuries at the time of occuring then this can go against him but only as far as reducing the payout!!

As an employer you are within your rights to put the employee through disciplinary procedures should you feel they breached H&S procedures at anytime

Jase84  
#15 Posted : 09 November 2017 21:23:37(UTC)
Rank: New forum user
Jase84

The risk assesment we have for the task clearly states that for access to / egress from the pipe stack, that approved access steps are to be used.  No one was using steps on the day, however the rest of the guys egressed from the low side as I previously stated, except the IP.  Apparently he put his hand out on the way down and his finger was caught on the edge of the vessel safe haven, causing the fracture.

The question I ask is why would anyone in their right mind take this route when there was clearly a safer alternative?  

We have started getting the guys to sign off on risk assessments based on similar occurrences in the past, however this one has not been signed off by the IP, due to him being on long term sick from one of the previous incidents that I am very doubtful of its credibility.  I really have difficulty with us having to have a signature in order to prove we have a safe system of work.

From past experience, the insurers are quick to just say pay out, as x y z will be difficult to defend.  I feel this sets a precedent for others to pursue claims.  Even if it cost us more in the long run, I would advise the company to take them through the full tribunal / legal process.  If anything this sends a message to others thinking of chancing their arm.

I have spent weeks on investigation reports which clearly demonstrate contributary negligence on the part of the IP, and still they are not taken through the system, or even disciplined.

Continually paying claims is surely introducing corporate risk to the organisation.

He is not a new employee, and has been involved in this task many many times before.

pl53  
#16 Posted : 10 November 2017 08:05:45(UTC)
Rank: Super forum user
pl53

Unfortunately Jason, everything you say in your last post , in my view, would stack up against your company in the event that a claim went to court. 

It is not good enough to say that you have safe working practices in plave, you also need to manage them to ensure that they are effective. They clearly are not effective because you allow them to be disregarded, routinely it seems. Examples of that are:

"The risk assesment we have for the task clearly states that for access to / egress from the pipe stack, that approved access steps are to be used.  No one was using steps on the day, however the rest of the guys egressed from the low side as I previously stated, except the IP."

So no-one was following the risk assessment, some disregarded it it one way, and one person disregarded it in another way. You seem to be implying that it is acceptable to disregard the RA in one way but not in another.

"The question I ask is why would anyone in their right mind take this route when there was clearly a safer alternative?  "

My question would be if the RA states you must use the steps why were none of the employees using the steps. Whether or not any alternative routes are more or less safe is irrelevant because the RA states use the steps. 

" I have spent weeks on investigation reports which clearly demonstrate contributary negligence on the part of the IP, and still they are not taken through the system, or even disciplined"

Again this is evidence that your company is failing to manage safety properly. If there is evidence of, as you say, contributory negligence what has your company done about it. If the answer is nothing then the negligence begins with your company.

Jase84  
#17 Posted : 10 November 2017 11:19:49(UTC)
Rank: New forum user
Jase84

Originally Posted by: Jane Blunt Go to Quoted Post

You say ' injuries ....which we have no witnesses to, but nor can we prove that they didn't occur'

Surely there is a first aid report? I find it hard to believe that someone would break a finger and not be hopping around saying ouch (other exclamations are available). and wanting to see a first aider.

There is an incident report and a hospital visit which proves he has a fractured finger.  What we can't prove is whether the injury was sustained at work or away from work.  The reason I am sceptical is due to reports regarding his behaviour, and the fact he clearly doesn't want to be here.  Returning from long term sick, only to then miraculously sustain another injury and go off on further long term sick.   

Hsquared14  
#18 Posted : 10 November 2017 12:04:57(UTC)
Rank: Super forum user
Hsquared14

Your problem will undoubtedly be a lack of documentary evidence.  Pre action protocols for civil claims revolve around documentation and paperwork.  If you don't have a piece of paper saying you have done something then evidentially it didn't happen.  These days you don't get a chance to test the strength of your argument in court unless the claim is for a serious amount of money.  It is generally a case of put up and shut up!!  Your insurance company will have to pay out because you don't have the documentation to put forward as a basis of your defence.  The name of the game these days is cost mitigation rather than cost avoidance in most cases the best you can hope for is that all the factors you mention will be used by the insurer to reduce the payout.  In doing dozens of insurance surveys per year for employer's liability this was the biggest gripe and mentioned by all employers but the hard facts are that unless your defence is watertight on paper it won't help you at all.  Having said that my personal opinion is that going off on long term sick for a broken finger is a bit much really and not generally medically justified so I think you would have a sound argument for mitigation of costs on that alone. Keep in touch with your insurance claims handler and make sure you put a plan in place to cut out the "me too" effect that cases like this can spark off

Ron Hunter  
#19 Posted : 10 November 2017 14:38:37(UTC)
Rank: Super forum user
Ron Hunter

You've posted way too much information on this public forum. If discovered, this thread could severely prejudice any defence. It could potentially lead to further legal action.
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toe on 12/11/2017(UTC)
Roundtuit  
#20 Posted : 10 November 2017 16:15:36(UTC)
Rank: Super forum user
Roundtuit

One of the purposes of conducting a return to work for the long term sick is to quickly bring the returning employee up to speed with changes in the workplace that have happened during their absence such as new/revised policy and procedures

Roundtuit  
#21 Posted : 10 November 2017 16:15:36(UTC)
Rank: Super forum user
Roundtuit

One of the purposes of conducting a return to work for the long term sick is to quickly bring the returning employee up to speed with changes in the workplace that have happened during their absence such as new/revised policy and procedures

RayRapp  
#22 Posted : 11 November 2017 23:05:45(UTC)
Rank: Super forum user
RayRapp

I have read all the comments and nothing has changed my mind from my original post. I am no lawyer but I am quite surprised at some of the assertions which have been made. A lack of a RA per se does not mean you are liable in a civil case - only sigificant risks need to be recorded for starters.  

I recall a case where a following a fall at a golf course the lady member took it upon herself to make a claim. Her solicitor asked for RAs, etc. My response on behalf of the client was we don't do RAs for ditches because they are an integral part of the course and the game of golf. The lady chose to retrieve her ball from a ditch and as a result injured herself - volenti non fit injuria. That was the end of that nonsense.  

Edited by user 11 November 2017 23:08:09(UTC)  | Reason: fat finger syndrome

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A Kurdziel on 13/11/2017(UTC), Jase84 on 14/11/2017(UTC)
pl53  
#23 Posted : 13 November 2017 13:22:12(UTC)
Rank: Super forum user
pl53

Nice anecdote, not relevant in this case though. They have a risk assessment covering access and egress, they allow it to be routinely ignored, not just by the IP but by everybody. They then seem to be saying that it is safer to ignore the risk assessment in one way than another. The IP chose to  ignore the risk assessment in the most unsafe way therefore he is liable for the resultant injury. Yer right, good luck with that one.

Jim Tassell  
#24 Posted : 13 November 2017 13:44:29(UTC)
Rank: Forum user
Jim Tassell

I'm with Ron Hunter regarding publishing too much info here. Stop, go talk seriously to your insurers and also your finance director about the possible routes forward. In private.

Other people can comment about aspects of the management regs as they wish but I suggest that they need to be mindful of your position and the potential for compromising it. Commenting on strength of evidence is something that only your/the insurer's solicitor should do and that in private.

Sorry if this sounds a bit drastic and anti free speech etc. but caution needs to be the watchword for all of us in this sort of case.

djupnorth  
#25 Posted : 13 November 2017 20:32:25(UTC)
Rank: Forum user
djupnorth

My apologies for the long post but hopefully you will understand my reasoning.

Can I please refer you to:

Management of Health and Safety at Work Regulations 1999 3(1), which provides that every employer shall make a suitable and sufficient assessment of (a)the risks to the health and safety of his employees to which they are exposed whilst they are at work… for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions.

MHSWR regulation 10(1), which provides that ever employer, shall provide his employees with comprehensible and relevant information on (a) the risks to their health and safety identified by the assessment; and (b) the preventive and protective measures.    

I would also draw your attention to the case of McGhee v National Coal Board [1973] HL in which Lord Wilberforce held:

“Why should a man who is able to show that his employer should have taken certain precautions, because without them there is a risk, or an added risk, of injury or disease, and who in fact sustains exactly that injury or disease, have to assume the burden of proving more.”

Finally, can I draw your attention to Kennedy v Cordia (Services) LLP [2016] in which Cordia failed to undertake and evaluate a risk assessment and had it done so, it would have concluded that PPE was available to protect Kennedy (at common law).

The Supreme Court held that Cordia’s breach of its Management of Health and Safety at Work Regulations 1999 regulation 3(1) duty and thereby its failure to provide appropriate PPE was negligent at common law meant that Kennedy’s personal injury claim succeeded.

Where an employer is unable to show that it has complied with its statutory duties by undertaking a suitable and sufficient assessment of risks, it has evaluated that assessment and implemented appropriate controls, and it has informed its employees of the risks to their health and safety and the controls implemented to manage those risks, an injured employee could well succeed in a claim for damages.

I trust this is of value.

DJ

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chris42 on 14/11/2017(UTC)
RayRapp  
#26 Posted : 14 November 2017 09:35:01(UTC)
Rank: Super forum user
RayRapp

Thanks djupnorth for your erudite comments. 

I think the difficulty here as I have alluded to in my previous posts is it is very difficult for a duty holder to have a recorded RA for every task and covering every potential injury. Indeed, the law only requires significant risks to be recorded...what is the value of 'significant' if an employer is expected to have a RA for every task!  

In the case of R v Porter [2008] EWCA Crim 1271 some dare I say, common sense prevailed, where the judge ruled on the current legal test of 'risk' pursuant to HSWA. In essence, it states that there needs to be a real, as opposed to theoretical or fanciful, risk and whether the existence of a previous similar accident can be a relevant factor. I accept the Porter case is criminal law but I believe the principle should be the same for civil law actions.

 

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chris42 on 14/11/2017(UTC)
pl53  
#27 Posted : 14 November 2017 09:48:45(UTC)
Rank: Super forum user
pl53

Sorry but you can't have it both ways. In post #4 you state

"I believe the Tangerine case was a criminal case re HSWA s2/3 so does not apply." 

In your lates post you go on to say 

"I accept the Porter case is criminal law but I believe the principle should be the same for civil law actions."

So which is it to be?

RayRapp  
#28 Posted : 14 November 2017 10:51:47(UTC)
Rank: Super forum user
RayRapp

With respect, I was not citing a criminal case with regards to a potential civil claim but comparing the principles of risk and injury to a criminal case, which I also acknowleged - subtle difference.

stevie40  
#29 Posted : 16 November 2017 10:33:15(UTC)
Rank: Super forum user
stevie40

As others have said, speak to your insurers and their appointed investigator to see what additional information they need to defend the case. 

It is likely that each case is being dealt with in the Claims Portal. This is for claims worth less than £15k (iirc) and where liability is straightforward. If a case remains in the portal, the claimant solicitors costs are severely capped at less than £2k (iirc - figures may have increased since the Portal started). https://www.claimsportal.org.uk/about/about-claims-portal/

If a claim is to be defended, it comes out of the Portal and claimant costs will acrue in the old fashioned way - e.g. a lot. 

So that is the background to claims economics - fight and pay heavily if you lose or settle within the Portal framework. However all is not lost in your case due to basics of negligence claims:-

To succeed, claimant has to prove 3 things. 

1) Duty of care was owed - that will be proven as he was an employee. 

2) There has been a breach of that duty - to which much of the discussion on this thread has been aimed. 

3) The loss / injury has arisen as a result of that breach. On this last point, I suspect you may have a fighting chance. It is down the claimant to prove the link between breach and injury and it appears there are sufficient grounds for challenging some of these, e.g. fighting leading to broken finger. 

The problem with 3 is you will need counter evidence and that will normally come from the claimants work colleagues - who may not be prepared to help you. 

Insurers do make use of Social Media investigations / actual surveilance so that is something you could ask them to look into. Most dodgy claimants do not possess the skills needed to maintain a consistent lie. 

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