Duty of Care
Accidents in the workplace may take many forms. Employers are under a duty to provide a safe system of work. In other words they owe a ‘duty of care’ to their employees.
Duty of care means, for example:
- Providing adequate equipment to carry out the job in hand.
- Providing adequate protection to ensure the safety of employees, when they carry out the job.
- Providing adequate training to ensure that employees know how to do their job properly.
- Providing adequate staffing levels to make sure that undue pressure is not put on to any inpidual employee.
If any of these criteria are not provided for, then the employer is in breach of the duty of care and would, in effect, be negligent. Therefore an employee could have a potential legal claim for personal injury
An employer can also be liable for the acts of other negligent employees. This is known as ‘vicarious liability.’ Again, these acts could lead to a potential claim by the employee.
Employee considerations in relation to a claim for personal injury
An employee will have to consider whether the employer has:
- Implemented the Health and Safety recommendations that are made by the Health and Safety Inspectorate. The employer needs to show that he has provided appropriate training – for example manual handling to comply with Manual Handling Regulations when lifting. If they have not, then this could provide reason for a claim.
- Carried out regular risk assessments to ascertain any weaknesses in the system of work and potential risks, which may lead to personal injury claims. If they have not, then this could provide reason for a claim.
- Carried out regular reviews to ensure that they have identified employees who are vulnerable and unable to cope with potential workload. The reviews ensure that they are providing adequate support to their employees.
An employee could have a potential claim therefore, if:
- They become absent from work because of stress related illness brought on in the work place.
- The employer, with knowledge of the situation, puts the employee back into the same situation which originally created the stress related problem.
If you have had an accident at work, what should you do?
Employees should ensure that:
- The accident had been recorded in the firm’s Accident Report Book and it has been reported to the employer.
- The matter is reported by the employer to the Health and Safety Executive and to the Local Authority in the RIDDOR report form.
- Details of the complaints about the system of work have been logged and put in writing to the employer.
- Following injury, that the injury had been logged by the G.P. or hospital.
Details have been obtained, where possible, of:
- Other accidents of a similar nature in the workplace.
- Any witness to the accident in question.
What if you are absent from work as a result of your accident?
Check what your contract of employment, and other employee documents say about:
- Sick pay, including statutory sick pay.
- Procedures for encouraging and assisting your return to work.
- Procedures for obtaining relevant medical information, (if you are likely to be absent for any length of time, your employer should never make final decisions about what to do without obtaining all the relevant facts. Generally the employer is entitled to expect your co-operation in this, normally at your employer’s expense).
- Procedures for discussing matters with you in an appropriate manner, so that any decision is taken fairly. This can include, in an extreme case of serious illness or injury, a decision to terminate your employment through ill health or injury. If your employer makes a hasty or ill-informed decision, you may be able to seek compensation from an Employment Tribunal* claim.
- If you are left with a disability, as defined by the legislation, reasonable adjustments that can be made by your employer to your workstation or the nature of your work, to make it easier for you to return. The employer should also consider whether there is an alternative job, which you could do.
Employment Tribunals
We can advise you about the principles which guide Employment Tribunals in determining the fairness or otherwise of dismissals, which flow from the Employee’s absence from work. If necessary we can also represent you in Tribunal or other court proceedings.
Stress in the workplace
This has recently been acknowledged as an area your employer can be liable if appropriate steps are not taken to protect the employee from undue stress, often related to unmanageable workloads.
Check whether your employer has in place:
- Mechanisms to identify stress at an early stage.
- Procedures to deal with stress.
Depending on the size and resources of the business, your employer should give consideration to appropriate training to assist you in managing stress within the workplace.
If your employer is ‘on the ball’, they will recognise the need to take all necessary steps not just to avoid the risk of injury to you, but also to ensure the smooth and efficient running of the business.
Where a claim is identified, there are a number of funding options. Since 1st April 2000 Legal Aid Funding has not been available for all personal injury (excluding clinical negligence and professional negligence) claims:
The funding options that are available are as follows:
Legal Expenses Insurance Cover
This funding option must always be considered first. Clients may have this cover under a buildings or contents insurance policy. It is often referred to as Family Legal Cover for which an additional premium would be payable. You should check with your Insurance Company/Broker if you have this cover and we would then under take the claim on your behalf.
If we are, then, ultimately successful in your claim, we would then recover your damages and our costs and disbursements from the third party’s insurers and there would be no claim under the policy.
If we are unsuccessful or had to advise you to discontinue the claim, then our costs would be paid by the legal expense insurer.
Legal Expenses Model
| Success |
Faliure |
| Recovery of damages for client |
Recovery |
| Costs and disbursement recovered from third party insurers |
Legal Expense Insurer pays costs subject to any policy excess |
Conditional Fees arrangement with ‘after the event’ Insurance (NO WIN NO FEE)
This funding option is available subject to Risk Assessment of the case by us. If we consider that there is a better than 50% chance of success in your case then this option will be available. As we are taking the risk and because of the fact that we shall not receive payment until the end of your matter, we are entitled to charge a success fee which is normally recoverable from the third parties insurers.
The basis of the Conditional Fees arrangement is literally that if we are successful we will recover your damages, our costs and disbursements. If we are unsuccessful or we advise you to discontinue then you do not receive damages and we do not get paid. We operate an ‘after the event’ insurance cover with deferred premium payment. This insurance covers you in the event that the third party have incurred costs or disbursements and in the event of an unsuccessful claim. All Conditional Fees arrangements incorporate Law Society Conditions.
Conditional Fee Model
| Success |
Faliure |
| Recovery of damages for client |
No Recovery |
| Costs and disbursement recovered |
|
| Success Fee (recovered) |
Costs of other side and disbursements paid by ‘after the event’ insurer |
| Insurance Premium (recovered) |
|
Trade Union Funding
This is only open to trade union members and may involve you having to receive your advice from their nominated solicitors.
What Constitutes a Claim?
When you have an accident you do not automatically have a claim. You will only have a claim if you can prove that three consistent elements are present.
- Liability.
- Negligence.
- Causation.
We must be able to show that your accident was caused by the negligence or actions or default of another party. For example, if your employer failed:
- To provide you with protective clothing.
- To implement health and safety recommendations.
- To provide proper equipment for doing the job.
- Or the Council failed to adequately maintain the pavement.
If we can prove the negligence of another party, then that party will be liable to compensate you in damages for your injury. But we also have to prove causation, in other words that the injuries you received were caused by the negligent acts of an employer, a manufacturing company, the Council or another driver. Therefore it is necessary for us to show, by obtaining medical evidence, that these acts or omissions caused the injuries from which you are now suffering.
If you have in anyway been responsible yourself for sustaining injuries then your damages will be reduced.
If, for example, you did not wear protective clothing provided by your employer or did not wear a safety belt at the time of the road traffic accident, then your damages will be reduced. This is what we refer to as Contributory negligence.
In most cases claims have to be issued within 3 years of the date of accident.
If the Claimant is under 18 years of age, then the claim has to be issued within 3 years of the date of the Claimant’s 18th birthday.
Any claim consists of 2 consistent elements:
- Damages for your injuries
This includes damages for pain, suffering and loss of amenity, which we call General Damages.
- Damages for your out-of-pocket expenditure
For example loss of earnings, prescription charges, replacement of clothing, loss of use of vehicle, travelling expenditure to and from hospital and G.P. cost of provision of care, which we call Special Damages.
