Rank: Forum user 
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Evening all, I've been asked to have a chat about a recent accident and would appreciate some input to check my thinking. I think the main concern is whether the employers are liable to get sued and whether a third party contractor shares any responsibility.
Story starts with a third party contractor leaving a bolt protruding from the ground in a car park. The third party contractor are likely to be deemed competent, works had been handed over and they had left site. Next an employee saw the bolt and put a traffic cone on it as it looked like a trip hazard. Then another employee saw the traffic cone and removed it as it was 'in the wrong place'. Finally an employee tripped over the bolt and injured themselves. Employee now off work with injury and threatening to sue.
My initial thought is that any legal action for loss of earnings would be a civil claim directed at the employer, not the third party contractor. The employee would have to show (on the balance of probabilities) that the employer did not meet their obligations under the HASWA. This is probably difficult to argue against as employees can be shown to have known about the hazard as they put a traffic cone on it. As I understand it the employer (or their EL insurer) could raise a civil claim against third party contractor for any losses suffered.
Can anyone please tell me if I'm way off the mark here? Or if there is anything else I should think about?
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Rank: Forum user
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Well, FWIW, I stopped reading at: '....works had been handed over and they had left site'
This would/could be read as the workplace had been accepted back by you, (The controller of the site), and you were happy with the state they had left the area in. Did anyone from your company check the works area and take ownership of this 'handover'
I think this one sits with you/your company,
It would have been good if the person who placed the cone initially had informed supervision/management as to why and where etc then you/your company could have attended to the hazard
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 1 user thanked Pirellipete for this useful post.
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Rank: Super forum user
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If it were me I wouldn't worry too much about the niceties of legal principles concerning liabilities. Should a claim be entered, I would bet a considerable sum that it will be settled on the balance of costs. Ie the site controllers insurance will settle out of court and decline to counter claim against the contractor (even if theoretically there is such a valid claim to make) as this will be FAR more cost efficient than any further action. I learned a long time ago that claims are VERY rarely the subject of the legal principles we all have to learn in our professional studies. The last loss adjuster I dealt with was an accountant by proffession and was at pains to point out not a lawyer. Edited by user 07 February 2023 13:34:14(UTC)
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2 users thanked Holliday42333 for this useful post.
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Rank: Super forum user
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Hi Eddie, I'm with Holliday on this one. I wouldn't waste too much time pondering on who might be liable, let alone trying to calculate waht %age each party might be liable for, not least since you don't even know whether the injured party will actually turn threat into action.
Insurance companies and loss adjusters do what they are good at. What they need from you is some information to help them.
So, a time line and the basic details. What are the dimensions of this protruding bolt and where is it compared to where people walk - suppose it is on a main walkway in the premises then it presents a much greater risk than hidden away in some corner where few will pass! Get photos of the offending bolt and its location + drawings or sketches of the layout of the area. When were the works handed over and what was the process to accept them as complete? Where is the paperwork to tell you what, if any, client and contractor inspections(s) were done as part of this process? When did somebody notice the protruding bolt and put that cone on top? When did somebody else decide that the cone didn't look right and remove it? When did the victim fall over the bolt? What if any first aid measures applied? Was the victim taken to hospital? Then with all this, my focus would be on learning lessson to prevent something comparable happening in the future. So, is there room for improvement in your control of contractors? Is there room for improvement in how unsafe conditions are communicated and so on? You could get a win out of this. Find some areas for improvement (and act on them) and the "claim" might simply go away (particularly if you treat the victim with appropriate respect)!
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2 users thanked peter gotch for this useful post.
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