Workplace accidents can occur in any work environment. Some
work places are potentially more dangerous than others, but they all pose a
risk. Since the mid-1980s there has been a steady decline in the number of
accidents at work but despite this there were still 144 work related deaths
last year. The majority of these occurred on construction sites and most of those
were falls from height. There were a further 600,000 non-fatal injuries for the
same period.
If the employer is at fault then the injured worker may have
a claim. The purpose of this article is to set out the basic features of a work
related accident claim.
Who is to blame?
An employer has a legal duty to ensure the reasonable safety
of his employees. This includes:
·
Providing a safe work environment
·
Reducing the risk from potentially hazardous
tasks
·
Ensuring colleagues are competent
·
Providing adequate training
·
Assessing potential risks and monitoring compliance.
Depending on the type of work involved many of these areas
will often cross over. For example a scaffolder working in the winter near
overhead power cables presents a number of potential hazards including:
Fall from height
Freezing injury
Electrocution
The employer must in these circumstances provide adequate
personal protective equipment, appropriate harnessing or means of arresting a
fall, be able to produce a risk assessment demonstrating that
consideration had been given to safe distances to work from the power
cables and show that the worker has received adequate training.
The risk assessment is often the most contentious document
in work accident claims. All too often the employer or his manager carries out
the risk assessment then puts it in his file and forgets about it. If the
employer cannot show that he followed up on the risk assessment by properly
managing the task he will probably be found liable for any subsequent accident
arising from the assessed risk.
Vicarious Liability
The actions of a negligent co worker may make the employer
liable. This is important because a fellow employee is unlikely to have any
personal insurance cover. It is
compulsory for an employer to have such insurance. Despite an employer/manager
having done all that could be reasonably expected in terms of training,
provision of equipment and risk assessing etc he may still be liable for the
negligent acts of a co worker even though there was little the employer could
do to prevent the accident.
“Horse play” often features in these types of claims ,(
particularly nasty injuries can be inflicted with compressed air hoses). If the
incident is deemed to be outside the normal course of employment the employer
will avoid liability.
Contributory
Negligence-did the worker add to the problem?
An employer may often argue that the worker was responsible
for his own injury because he did not comply with instructions and took on the
risk despite warnings. If the worker is deemed to have contributed to his own
injury then his compensation will be reduced by an appropriate percentage.
However the courts will look at all the circumstances before
making any deduction. Opening a safety grill and putting your hand near the
working parts of a machine would appear to be a classic example of when
contributory negligence should apply. However if the practice was common within
a factory and either encouraged or at least tolerated by management then any
reduction is likely to be minimal or non- existent.
Employee or Sub contractor?
In these days of the gig economy the division between self-employed
contractor and employee can often seemed blurred. Jobs that were once undertaken by employees
on full time contracts are now often undertaken by self- employed minimum hours
contractors.
A negligent employer who is able to demonstrate that an
injury occurred to a self employed sub contractor may escape liability.
Fortunately the courts have consistently ruled that you must
look behind what any written contract may state and instead look at all the
circumstances. That is why the regulations and Acts of Parliament refer to
“workers” rather than employees. The starting point is who has “control”. If a
contractor can turn up to work when he wants, work as many hours he likes or send
someone to work in his place then he is probably self-employed. If on the other
hand the contractor can do none of the above but is paid a gross salary and is
responsible for deducting his own tax, then he is likely to be a worker despite
the written contract stating otherwise
The vast majority of employers are conscientious and aware
of their duties which they carry out with admirable skill and care. Those who
are not can expect little sympathy and deserve none.
Tim Quinn is a Partner at Howard and Over and is Head of the Litigation
Department.
If you would like to discuss a claim with Tim he can be contacted on
01752 556606.
