Posted By Michael Webb Just something i was thinking about over lunch...as you do...... A member of staff who works somewhere like a high security mental hospital (guess where i'm coming from) is assaulted by a patient. Should that member of staff (very experienced, well trained/qualified etc etc) choose to pursue a claim against the company, would they be successful? Given the nature of the works & the potential risks, could the employer claim 'volenti non fit injuria'??

Posted By Adrian Watson Dear all, A couple of points: 1. HSWA 74 S 47 prevents any failure to comply with any duty imposed by or breaches of sections 2 to 7 or any contravention of section 8 from conferring any right of action in any civil proceedings. 2. Regulation 22 of MHSWR 99 prevents a breach of a duty imposed by these Regulations as giving a right of action in any civil proceedings. With regard to taking a civil action they may claim damages for: a. Breach of Statutory Duty;and/or b. Negligence; and/or c. Breach of Contract. For negligence the claimant has to prove, on the balance of probabilities, that they were owed a duty of care, that there was a breach of that duty and that the breach caused recoverable losses. Like all things it depends upon the specific facts. In this hypothetical case, as in reality proving a duty of care is not normally a problem. Proving that there was a breach of that duty of care is often a problem. You would have to show that the employer did not excercise the standard of care expected of a reasonable employer. This is difficult because you have to show how he could of acted differently. Could better restaining techniques been used? Once that has been proved you have to show that there was recoverable losses. Regards Adrian

Posted By Phil Grace Regarding Richard's point: Here in the UK claims for compensation in the civil courts are heard in front of a judge not a jury. Notwithstanding this the vast majority of claims never reach the court. They are settled by negotiation since it is a very expensive option to "have ones day in court"...! In addition it best to reserve the option of court for those cases where one feels very confident of success - either because the claimant is regarded as having a poor case or because one has been able to construct a sound defence, fully supported by all necessary information. This would include sound policies and procedures, documented training, credible witnesses, written evidence of training, issue of PPE, warnings, etc.