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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.


SPORTS INJURY

Claims involving sporting activities have their own unique problems due to the circumstances in which most sports accidents occur.  The usual rules about negligence apply, but often have superimposed on them the additional rules and regulations of the individual sport.

There are three main areas to consider:-

1.      Participants

The usual rules relating to negligence,or even the criminal law, are in effect suspended during certain sporting activities. An obvious example is boxing.  The usual rules relating to assault are suspended because both participants are considered to have volunteered to waive their rights (volenti non fit injuria) so that a boxer who sustains a broken nose will not be able sue for assault or make a claim for a criminal injury compensation.  This suspension of the normal rules would only apply whilst in the boxing ring and if, instead, the boxer starting fighting at the weigh in, then the normal rules would apply just as much as if the fight had occurred in a pub car park after closing hours.

But this ’volunteering’ to give up ones’ rights has its limitations. To use the boxing analogy again, a boxer only consents to being ‘assaulted’ if his opponent complies with the  rules of the sport.  A deliberate punch ‘below the belt’ or after the bell has sounded could be considered outside the rules and if injury results, the offending boxer could face a civil claim. 

The same rules apply to any sporting activity.  Thus, a career ending illegal tackle on a premiership football player could result in a £Million claim.  However, the number of illegal challenges in football is quite high and regarded as an accepted hazard of the game, albeit outside the strict interpretation of the rules, so any such tackle would have to go beyond what could be considered in any way reasonable.  Thus, a sliding tackle might be considered dangerous, but not unreasonable within the context of a professional game, but deliberately stamping on an opponent would probably not avoid sanction.

2.      Match officials and organisers

This area of law is becoming increasingly contentious, particularly in the amateur game where often the only person with any indemnity insurance and, therefore, worth suing, is the match official.  Liability can become an issue even before the players have left the changing room.  Pitch inspections can be particularly controversial, especially when a sports ground is open to the public.  A cursory inspection which failed to detect a broken bottle, which later injured a player, was considered negligent by the Courts and an award for damages was made. Contrast this with another case in which a claimant lost his claim for  an  injury caused by a broken cricket boundary marker, which had been left in the pitch.  The Court, in that case, concluded that a reasonable inspection would not have revealed the broken marker, and so the match official escaped liability.

In high contact sports, such as rugby, the match officials’ decisions can have devastating consequences.  In a colt rugby match, a referee allowed an inexperienced substitute to take the place of the teams injured hooker in the scrum.  The scrum collapsed and the replacement broke his neck causing devastating injuries.  The referee was found liable for not imposing the crouch-touch-pause sequence, which was then applicable to the junior game and later adopted throughout rugby union.

Organisers can also be found liable if they fail to take into consideration for  the safety of spectators.  Motor sports and horse racing are obvious examples where allowing the public too close to the track can have severe consequences, but even the best organised events can end in catastrophe.  The 1991 Australian Grand Prix was marred by the death of a marshal  who was struck by a tyre following a crash between two drivers. A gap in a fence designed to allow marshals on to a track in the event of an accident allowed the tyre through. The courts however have indicated repeatedly that some accidents are just that and provided the organiser took reasonable precautions liability will be avoided.

3.      Children

Particular care has to be taken with sporting activities involving children.  A higher degree of responsibility will attach to organisers and supervisors than would be the case if adults were involved.  This is particularly the case where there is an element of competition.

  Asking  a group 7 year olds to jog from one side of a dance studio to another as part of a pre-dance lesson warm up would not appear to be a particularly hazardous activity. What the teacher in this case failed to consider was that the 7 year olds quickly turned a warm up session into a sprint from one side of the room to the other, with the children slapping their hands onto the walls before turning round and running in the opposite direction.  In this particular case, one of the walls consisted of mirrored glass which eventually shattered on impact, injuring one of the children.  In her defence, the teacher argued that she had never asked the children to touch the walls but, nevertheless, she was found liable because it was entirely foreseeable that a group of young children would act in the way they had.  It is questionable whether the same outcome would have occurred if the participants had been adults.

The Courts have consistently maintained that, provided an organiser can demonstrate sufficient forward planning and a reasonable degree of supervision, then liability will not attach. 

In a notorious case involving a bouncy castle at a children’s party the parents, who organised the event, were successfully sued for allowing a larger child onto the bouncy castle, who clashed heads with a much smaller child, causing devasting injuries.  On appeal, the decision was reversed with the Court of Appeal holding that it is impossible to exclude all risks and that some accidents are inevitable and not as a result of anybody’s ‘fault’.  One of the parents had turned their back momentarily as the accident happened and the Court of Appeal felt that it was far too heavy a burden of supervision to expect the parents to be continually monitoring the bouncy castle.

Tim Quinn

Partner and Head of Litigation at Howard and Over LLP.


Howard and Over's Plymouth office will soon be moving from Albert Road in Devonport. 

In early 2018 we will be relocating to modern premises in the Plymouth area, details to follow shortly.


Plympton St Maurice Civic Association

Howard and Over have for many years supported the  Plympton St Maurice Civic Association (PSMCA)

We have been asked to contact all our clients to ask them to support the PSMCA bid for Aviva community funding for the PSMA Lamb Feast.

If you wish to vote please follow the link below.

https://www.avivacommunityfund.co.uk/acfcms/get-involved

Many thanks for your support.

 


IMPORTANT ANNOUNCEMENT

As a result of Howard and Over joining forces with Abbey Legal After the Event Insurers, we are now in a position to offer our clinical negligence clients a completely free initial assessment of your claim.

All you have to do is provide us with copies of your Hospital and GP notes and we will arrange for a Medical Expert to review the medical records to identify any breach of duty.

(If you do not have copies of your Hospital or GP notes, we can obtain these for you. Your Hospital or GP may make a charge for copying, capped at £50 for each set of notes).

 


The situations in life in which you need a lawyer are inevitably going to be important, consequential, and often time-sensitive. Whether you are writing your will, selling your house, going through changes to your family circumstances, or are a business owner looking for legal advice, you are faced with the choice of whose hands you put your important affairs into. As with any service, there are a range of options available to you, and your choice of lawyer can make all the difference.

We have all felt the feeling of being ‘just’ another number, having to speak to a different person every time we contact a large firm, regardless of what that firm does. Local lawyers value your instruction. Dealing with your local law firm gives you the benefit of not only knowing the name of the person dealing with your matter, but being able to talk to them. At an important time in your life, whether personal or commercial, being able to contact someone who has an in depth, day-to-day understanding of your circumstances is crucial.

Your local lawyer will have a strong knowledge of the locality, and likely will have been there for some time – for good reason. They understand the importance of meeting face to face with you, being easily accessible, and providing a service that will make them recommendable to other members of the local community.

Howard & Over have been a part of your local community for over 100 years, with offices in both Plymouth and Ivybridge. We understand the importance of accessible, personal and affordable service and are always committed to providing it. Please visit www.howard-over.co.uk to find out more about our lawyers and their specialities.

 


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But taking Legal Action can be Expensive

There are various ways of funding your case. You may already have legal expenses cover through your household or motor insurers and this may meet the cost of pursuing your claim. Alternatively if you are a member of a Trade Union they may be prepared to fund your case.

If you do not have any of the above you can pay the legal costs yourself as the case progresses. However most of our clients prefer to fund the case by way of a Conditional Fee Agreement, often known as a "no win no fee" agreement.


No Win, No Fee

We can look at dealing with your personal injury cases under a Conditional Fee Agreement. This means that if you win your case you must pay our costs but you should be able to get the majority of your costs paid by your opponents. If you lose, you pay nothing.

We recommend that the agreement is backed by insurance and our Personal Injury Specialist will discuss this with you in more detail during your first appointment.


What next?

We would be pleased to discuss any possible claim with you. If your claim has a reasonable chance of success we will be happy to represent you and we will guide you through the whole process.

We have offices in Devonport, Plymstock and Ivybridge and we are happy to see you at the office which is most convenient to you.

In the event that you cannot travel to one of our offices due to your injuries we may be able to visit you at home.


Is there anything I need to worry about before putting my business premises on the market?

Yes, unfortunately there are quite a few things you need to consider before placing your business on the open market if you hope to achieve a successful sale. Some requirements, like the Energy Performance Certificate, are needed before any businesses premises can even be marketed. But there are other matters, which most small business owners do not discover until the transaction is all ready underway, leading to unfortunate and avoidable delays. For example:

a. Apportionments – How are you going to apportion the sale e.g. between Goodwill, Property and Fixtures and Fittings? This should be considered carefully as the apportionment will have Tax consequences.

b. Asbestos Survey – this is a legal requirement under the Control of Asbestos at Work Regulations 2002. A lot of small businesses owners are unaware of the obligation until a potential buyer’s solicitors ask to see the report.

c. Fire Risk Assessment – this is also a legal obligation that some business owners are not aware of until it threatens to slow down a transaction.

Even when a buyer has been found there are certain matters which should be considered right at the start of the transaction to prevent delay. For example:

Planning Permission – what if your potential buyer intends to change the use of the premises? It can take at least eight weeks to obtain planning consent for change of use, and in a buyer’s market this is as much of a concern for the seller as it is for the buyer and could result in the transaction falling through. These matters should be discussed right at the start of a transaction. 


I’m entering into a new lease of business premises, what are the things I need to look out for?

There are lots of important aspects to a business lease that may not come to light until some years after the transaction has completed, and when the consequences could have a severe impact on your business, some of these are as follows:

a. Rent – you need to check if VAT is included or excluded, the frequency and type of rent reviews. Is there any rent-free period? Is a rent deposit required?

b. Term – is it suitable for your business needs? If it is too short, you may find you’re forced to look for new business premises. If you have just started a new business venture, you may not be ready to tie yourself to a long-term liability.

c. Break Clauses – who is the break clause in favour of? It may be in favour of the Landlord and what appeared to be a ten-year term could be terminated after only three years.

d. Assignment – Can you assign the lease, and if so are there any conditions? e.g. Do you need to sign a personal guarantee? Do you need the Landlord’s consent?

e. Repairing/Insuring – who is responsible and how extensive are the obligations? You do not want to find yourselves entering into a lease of a premises which is in a poor state of repair, to find yourself with the inconvenience and expense of extensive remedial work because of your repairing obligations or a failure to agree a Schedule of Condition.

Note: This analysis may contain information of general interest about current legal issues, but does not give legal advice.

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