Ok, the DIY store cetainly has liability (safe access to and egress from; safe walkways and so on); but if he broke his foot I would want to know if he was wearing PPE? It's reasonably foreseeable that if he's buuying heavy stuff there would be some potential for the load to fall on his foot one way or another, so if I were him I'd be looking at going for the DIY store and his employer,

John

guys thanks.

The injured persons employer is talking about looking for compensation as their employee is off work, is this possible? or can the claim only be made by the injured person.

Happened in the car park, although it is only used by the DIY stores customers i.e. they are the only shop in this car park.

I know it's not a RIDDOR question but I'd expect the IP's employer to report this as it's arising "out of or in connection with work" judging by the description. Reporting under RIDDOR is not an indication of fault on the part of the employer. This is no different from deciding who reports if a contractor is injured on your site - you don't, his employer does.

The IP may well get sick pay from his employer anyway - we don't know from the info provided here.

The IP if he wants to claim should do so against his employer in my opinion as he was "at work" and it will be covered by the Employer's EL insurance. The employer's insurer will then take action against the DIY store to recover costs, which should include the cost of the IP's sick pay.

Cooper - the employer should speak to their insurance company or broker - that's what they pay their premiums for! Liability is not a matter for them to decide.

What if - the employer does not report the accident under RIDDOR and the HSE decide they should have - potential for prosecution?
What if the store does not report the accident under RIDDOR and the HSE decide they should have - potential for prosecution?

My advice is both should report under RIDDOR.

If the employer reports the accident/injury to their insurer potential for rise in future insurance costs awaiting the result of the claim, not their fault but they suffer financially?

Heather I think that's the nail well and truly hit. Thanks.

Ring their head office and ask to be put through to their H&S or legal dept. Don't be suprised if you get put through to an answering machine. This is a common practice to avoid sales calls but do leave a message.

Heather,
You asked a question about recovery (by injured person's employer) of any sick pay they had paid to their employee.

1. The employer can not sue the DiY store in order to recover any sick pay that has been paid to their employee. There are a number of reason for this. Firstly there is no contractual agreement between the employer and the DiY store - hence no basis for a claim bsed on breach of contract. Secondly there is no basis for a claim based on negligence - the DiY store does not owe the employer any duty of care, there has not been a breach of any duty - hence no claim possible. Finally the employer's claim is purely financial - what insurers call economic loss. Generally such claims fail, and/or are excluded from the policies that the DiY store holds.
2. However, there is a route open to the employer. If the employer has a term in their contract of employment with their workforce that requires repayment of sick pay if the employee receives compensation then the DiY store's insurers will pay the compensation inclusive of any sick pay and the employee must then repay the amount received.
I am told by my Claim colleagues that there has been a gradual movement over recent years move from such terms being rare to their being commonplace, and much more likely. There is a view that they are of greater value for manual labour/workforces and especially where there is a significant amount of workaway from the premises.
3. However, if there is no such contract between the employer and employee then there is no prospect of recovery. The compensation paid to the injured person will be based on the loss - thus any amounts received as sick pay will be "deducted"... by this I mean that an average of weekly earnings, say for 13 weeks before the accident will be obtained and the amounts received in sick pay deducted with the balance paid as compensation.
The basis for this calculation is that it prevents double payment, ensures that the injured parry does not receive "double payment" for sums they have lost. The principle is that the payment of compensation is an attempt to put the injured party into the same position that they were before the accident, not to improve their position.

It should be noted that the above scenarios are based on the assumption that it is accepted/proven that there is a liability on the part of the DiY store i.e. they have been negligent.


Hope that clarifies matters.
Phil

Thanks Phil - the situation you described in your second para was exactly the one I was trying to describe (and making a rather poor job of!) in my earlier question. Despite dealing with EL claims since the mid-90s I had not come across this until about 5 years ago and then only because a solicitor acting for an employee against a third party in an RTA claim actually ASKED if the company had such a clause when they wrote to ask us for lost earnings info. Subsequently the company received a cheque direct from the third party's insurers if I recall correctly.