Facing a personal injury claim can be a daunting prospect, especially given today's compensation culture. But it need not be all doom and gloom, as there are a number of ways that companies can prepare to defend themselves more effectively.
You are most likely to defend a personal injury claim successfully if you are equipped with evidence which is presented in the form of written policies and procedures. And the reason why many cases are compromised and cannot be defended is that companies are regularly apt to fall down in three areas:
- failure to take appropriate steps before the accident (ie carrying out risk assessments)
- failure to record evidence in areas which could assist in the defence of a claim (for example, retaining training records)
- failure to take adequate steps after an accident (for example, by carrying out a quick but thorough investigation, in order to gather vital evidence).
You can materially improve your prospects of defending a claim by having the correct provisions in place, and by following agreed protocols and defence strategies should an incident occur. Do not wait for an accident to happen! The following checklist provides guidance on what your company should have in place.
HEALTH AND SAFETY POLICY
This key document should demonstrate your company's commitment to health and safety, by presenting its policies and procedures. A judge may review the policy as part of a 'trial bundle', and take into account the fact that your company has complied with its obligations under regulations and legislation in relation to an accident.
If a claim arises relating to stress, for example, your company should be able to demonstrate to a court, by reference to the policy and arrangements, that it has adhered to the provisions put in place for dealing with stress.
An accident book or record is one of the most contemporaneous documents completed after an accident. A judge would consider the content as the most likely description of what actually occurred. If this account differs from that in the letter of claim from the claimant's solicitor, a judge might be persuaded to regard the accident book entry as being more accurate and reliable.
As a disclosable document, the accident book can be viewed before the hearing by a claimant's lawyer, and, in some cases, by a judge as part of a trial bundle. Therefore, the information contained in it should outline precise facts, and offer evidence recorded at the time.
It is essential, however, that your company does not make any comments or admissions which may be considered detrimental to the company after the event, and thus threaten the defence of a claim. Such admissions may influence the hearing of evidence once a trial has started.
The incident report form will demonstrate that a thorough investigation has been carried out with a cause analysis and a conclusion. By ensuring that the contents are factual and accurate, and that the wording does not constitute admissions by default, it will capture all the necessary information to draw conclusions from the investigation. This will pinpoint the cause, lead to identifying any additional steps to be built into business operations and prevent recurrence.
One of the biggest mistakes that many companies make is to think an incident is too minor to require the taking of witness statements. In fact, statements should be routinely taken in all accident investigations - whether positive or negative.
Positive statements should be from those witnesses who can actually help the investigation, both in terms of your defence and in how the incident can be prevented from happening again. Negative statements are from people who do not actually see what happened and therefore cannot give any direct evidence. These will prevent individuals known to the injured party from becoming positive witnesses at a later stage.
In the UK, statements should be taken to comply with Part 32 CPR (civil procedure rules), and should detail the witness' address, date of birth and occupation, together with the numerical referencing of all paragraphs.
Before the statement is signed, a formal declaration needs to be placed at the bottom of the witness or injured employee's statement, reading: 'I, John Smith, believe that the facts stated in this witness statement are true.'
The importance of photographs cannot be over-estimated, as they often highlight the difference between each party's version. Such evidence can also be used as a tool to demonstrate the location of an accident, the state of a floor, and so forth.
Photographs are not used frequently enough and are often taken in the incorrect format. Traditional analogue or Polaroid photography is preferred.
Ensure that the photograph has the time and date it was taken written on the back, plus the signature and printed name of the person who took it.
Management risk assessments are legally required under the UK Management of Health & Safety at Work Regulations 1992 (as subsequently amended).
These state that every employer shall make a suitable and sufficient assessment of the risk to the health and safety of his employees. Together with training records, these are some of the most important documents when defending a claim.
Specific regulation risk assessments are listed in the standard disclosure list, and must be produced if a defendant wishes to deny liability or raise allegations of contributory negligence.
SAFE SYSTEMS OF WORK
Safe systems of work outline the provision of instruction, information and training to employees - and should cover all the relevant risks across a business. They highlight control measures, and both ensure that employees work within a safe environment and communicate that fact.
Consider using visual aids or photographic depictions to explain procedures, as these can be more explanatory than simply reading narrative. And, wherever possible, involve members of the workforce in writing the safe systems of work. This can be particularly helpful in the event of a claim, as the company can then demonstrate that the claimant was not just aware of procedures, but instrumental in defining and implementing them.
Training records are crucial to the defending lawyer. They demonstrate the provision of information and instruction to employees based on the risk assessment process, and identify the control measures which manage employees' safety in the workplace.
Being able to demonstrate competency is important in two respects. First, individuals must be competent to do what they are employed to do. Second, in terms of claims defensibility, they must be competent to give evidence on the subject matter for which they might be called. Evidence of this will come from qualifications, training, knowledge and experience.
A company must produce risk assessments, safe systems of work, and training records to show that employees are supervised and monitored in the workplace.
If this culminates in disciplinary action being taken against an employee who has breached health and safety, this shows an excellent audit trail of documentation, which should provide a strong defence to any claim.
Whenever disciplinary action is exercised, it is imperative that it is recorded and placed on an employee's personnel file. If an employee seeks to claim for an eye injury, for example, the records may reveal that he had refused to wear his personal protective equipment (safety goggles), despite previous verbal/written warnings.
HEALTH AND SAFETY COMMITTEE MEETINGS
Employers are under an obligation to consult with employees about health and safety, with minutes of health and safety committee meetings being disclosable documents under CPR.
A company should use such meetings as a forum for discussing corrective measures, allocating responsibility for their implementation and reporting back that those measures have been incorporated into the business. Ideally, the committee will comprise people from all levels of the business in addition to directors, human resources and health and safety representatives.
It is therefore important that meetings discuss current topics and keep employees advised of developments within the business, and that the minutes record positive actions and steps taken.
Workplace inspections and inspection records demonstrate an ongoing commitment to ensuring that machinery is in good working order, workplaces are kept clean and tidy, employees are following safe systems of work, and wearing their personal protective equipment. Undertaking such inspections is important, as a company can then argue that it complies with its policies in providing a safe place of work, and that employees follow safe systems of work.
Stress is a growing area of litigation, and one that a company must guard against by setting out procedures for dealing with work-related stress within its health and safety policy.
An employer's primary duty under the Health and Safety at Work Act 1974 is to take reasonable steps to ensure the welfare of their employees.
In terms of work-related stress, this means considering bullying, harassment, discrimination, working conditions, work environment and the nature of work.
HSE guidance on stress has made it clear that risk assessments for stress should be conducted every six months initially and annually thereafter.
In some cases it will be necessary to repeat these assessments more frequently, for instance, where a particular employee has been known to suffer from stress in the past. Failure to comply with the regulations can lead to action from the enforcing authorities.
Wherever possible, a company should try and involve its employees in tackling these areas to promote health and safety. Achieving buy-in from within the business and making positive improvements towards a safer environment, will place your company in a much stronger position to defend a claim, and may even prevent an accident occurring in the first instance.
Paul Clark is a solicitor and risk consultant, who advises on improving the defensibility of claims for Aon Risk Services, Tel: 0121 253 3147/07773 282 041, E-mail: email@example.com